Employees accused of a criminal offence

The Acas Code of Practice contains useful guidance when representing employees accused of a criminal offence. It says that the fact that an employee is charged with or convicted of a criminal offence is not normally in itself a reason to justify disciplinary action. Instead, the employer should consider what effect the charge or conviction has on the employee’s suitability to do the job and their relationship with their employer, colleagues and customers, including any genuine threat of reputational harm. This kind of dismissal will be highly context specific.

There should always be a proper investigation, as with any other sort of dismissal.

An employer does not normally need to wait for the conclusion of criminal proceedings before carrying out their own internal investigation and deciding whether to dismiss. So long as the employee is given the chance to tell their side of the story (even if they are advised to stay silent so as not to prejudice the criminal proceedings), then provided the available evidence justifies dismissal, that dismissal can be fair. Employers have a wide discretion to decide how to act (North West Anglia NHS Foundation Trust v Gregg [2019] EWCA Civ 387).

In Lafferty v Nuffield Health [2020] UKEATS 0006/19, the EAT ruled that a hospital porter could be fairly dismissed on the basis of the employer’s concern for its reputation when the employee had been charged with, but not convicted of, a serious sexual offence.