Legal

What employers need to consider if a staff member is arrested

5 Oct 2021 By Kate Palmer

In light of a recent court ruling, Kate Palmer examines the options businesses have if an employee is suspected of, but not charged with a crime

There are many things an employer needs to consider once they are notified of an arrest or investigation, including the severity of the charge/potential charge, risk to the business – both in terms of safeguarding and reputationally – and the employee’s rights, remembering that people are considered innocent until proven guilty in a court of law.

Any steps that a company takes should be done only after a full and fair investigation, following all HR processes, as with any disciplinary action, to avoid any potential tribunal claim. 

For a dismissal to be fair under the Employment Rights Act 1996, it must be for one of the reasons listed in s98(1)(b) and be within the band of reasonable responses (s98 (4)). 

In the recent case of L v K, the Court of Session ruled that a decision to dismiss a teacher for charges he faced (but was not prosecuted on) was fair, and one that a reasonable employer would have made. 

Facts

A computer with indecent images of children was found at the home of a teacher, where he lived with his son. They were both charged but not prosecuted (the right to do so was reserved, however). He accepted that the images must have been on the computer, because the police said they were, but did not know how they got there, as his son and his friends also used it. 

The employer’s investigation found that while it could not be concluded that he had downloaded the images, neither could it be rejected. This led to safeguarding and potential reputational damage concerns. It was felt this posed an unacceptable risk to the children, and he was dismissed. 

Court findings

A claim for unfair dismissal was brought. The employer argued there was a breakdown in the trust and confidence in the relationship. In defence, the teacher argued the true reason for the dismissal was the employer’s belief in his guilt.

The ET rejected this and was satisfied that there was a genuine and substantial reason for dismissal. 

There were legitimate concerns over his continuing employment, and the focus was not on guilt but the unacceptable risk to the children. It was also reasonable to be concerned about potential reputational damage, and so the claim was dismissed.  

The claimant appealed the decision, but it was upheld eventually by the Court of Session (the Scottish equivalent of the Court of Appeal).

It found it was reasonable to consider the risk to the children and the school’s statutory duty to protect them. Previous authority shows that circumstances short of actual belief in guilt can justify dismissal. The situation had caused an irreparable breakdown in trust and confidence in the relationship, and therefore there was a substantial reason for dismissal, and as the teacher’s involvement could not be excluded, the decision to terminate was within the band of reasonable responses. 

Notes for employers

Even if something has not been sufficiently proven for prosecution, termination is still possible if the employee’s involvement cannot be ruled out and the risk of continuing to employ them is too high. 

It is important, however, not to use this case as justification for a dismissal due to the potential for reputational damage. This point was found to be a side issue in the judgement, and while it was relevant, obviously, it was not the main factor for the decision in the case.   

Dos and don’ts:

  • Do not automatically assume guilt, this could lead to unconscious bias against the employee and impact on your decision making. 

  • Do carefully consider the charge, and the risk of the behaviours happening in your workplace. What would be the consequence if they did? Complete a risk assessment for this, what is the worst that could happen? 

  • Do not downplay the context of your situation. The nature of the work they do and the people they deal with will be critical. If the above facts happened in a chemicals factory, where no children were allowed and they did not have access to IT equipment, the case could well have gone another way. 

Kate Palmer is HR advice and consultancy director at Peninsula

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