Arrest connected to the employee’s activities at work
In this example, it would be common that the employer has already investigated the misconduct. Indeed, the employer may well be the one that involved the police. Common examples would be fraud, theft and driving offences committed while the employee is working.
The employer is generally not obliged to pause carrying out its own internal procedures until the employee has been successfully prosecuted. Rather, the employer can conduct its own investigation and disciplinary hearing, applying the normal principles of fairness and natural justice.
However, during the procedure the employee may opt not to answer any questions, most likely on the advice of their criminal lawyer. Here the key issue is that the employee has been given the opportunity to respond during the investigation and disciplinary procedures. The employer should reach a decision based on whether there is a reasonable belief in the employee’s guilt, that there is a reasonable basis to sustain that belief, and that the investigation was reasonable in the circumstances.
Arrest relating to the employee’s life outside of work
Matters tend to get more complicated where the conduct has taken place in the employee’s personal life. It is common that the first the employer is aware of the conduct is when the police arrive at the employer’s premises to arrest the employee, because the employee fails to report for work, or where the employer has received a tip off from a third party.
Certain behaviours that occur in the employee’s personal life have no connection with the employer; for example, a driving offence where the employee is not required to drive as part of their job. In these circumstances, the employer should not intervene.
However, there will be alleged conduct that does have an impact on the employee’s job; for example, being accused of having paedophilia-related images on a personal laptop at home. Here, if the employee’s role involves working with children the employer will have a locus to investigate further.
The issue of alleged criminal behaviour in the employee’s personal life still triggers the following:
- An investigation should be undertaken by the employer into the allegations.
- The employer should not suspend as a knee-jerk reaction to what the employee has been accused of. Some initial investigation will normally be appropriate before suspension is considered. That said, sometimes the alleged crime is so serious that suspension with very little investigation will be the correct course of action.
- If a police investigation is ongoing, the employer should be careful not to interfere with, or cut across, the police investigation. Sometimes this will mean delaying the investigation. However, care should be taken not to delay too long if the employer is considering dismissal on the grounds of gross misconduct as otherwise this can undermine the fairness of the process followed.
- The employee may have been advised by their criminal solicitor not to provide any detailed information to the employer as this may harm their defence. This can make it difficult for an employer to carry out an adequate investigation/establish a reasonable belief in the employee’s misconduct.
- Generally, the employer does not have to wait for the outcome of the criminal trial. The employer should conduct its own investigation and form its own view.
- Where the alleged misconduct has career-limiting implications, such as where the employee may no longer be able to work in a care role or legal role, the disciplinary manager must consider all available evidence, including any evidence suggesting innocence as well as guilt.
Kim Pattullo is an employment partner based in Scotland at Shoosmiths
Disclaimer: This article is for informational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given.