Breaking the law can range from relatively minor misdemeanours to much more serious offences – but when one of your workers falls foul and is charged with a criminal offence, where do you stand as an employer?

Deciding how to deal with an employee who has committed or been charged with an offence can be difficult, but as a starting point, any action which can be taken will depend on:

  • The nature of the work the employee performs
  • If the alleged offence was committed on the employer’s premises and during work hours

Crime on work time

If the criminal act was committed during working time, you can apply your disciplinary procedure and take action accordingly, imposing a sanction appropriate to the severity of the act. You should follow your usual procedure:

  • Inform the employee of the allegations
  • Investigate the incident, including speaking directly to the employee in question
  • Invite them to a disciplinary meeting
  • Decide an outcome

Remember that they have the right to be accompanied to their disciplinary hearing and to appeal if they don’t agree with the decision.

Criminal proceedings are different from employment law proceedings, so it’s possible to achieve a fair dismissal even if the employee hasn’t yet been tried in a criminal court, or has, but was found not guilty.

A fair disciplinary procedure must be followed in all cases, and your decision to dismiss must be based on a reasonable belief that they committed the act, or another fair reason e.g. that their behaviour has affected the trust and confidence that must exist between employee and employer.

Offences outside the workplace

If you’re considering dismissing an employee under these circumstances, you must show a connection between the offence committed and their employment role – so this depends on the nature of the work and the nature of the offence.

For example, an employee who works with vulnerable adults or children is likely to be fairly dismissed if they’re charged with a drug-related offence. If the offence causes the employer to lose trust and confidence in the employee, thereby destroying the employment relationship, it can also be terminated fairly. This may apply to circumstances where someone who handles payments is guilty of theft.

An employer is free to choose a sanction within the band of reasonable responses available, which may not necessarily be the most severe one. For instance, dismissal may be a reasonable outcome, but you may choose to demote your employee if the offence only interferes with some of their duties, e.g. if an employee loses their driving licence but they can continue to carry out the rest of the duties required by their role.