HR 6 June 2017

How to handle staff facing criminal charges or police investigation

police
The police may ask to see evidence gathered by an employer

Many employers will at some point have to deal with staff facing criminal charges or police investigation. Here, senior employment associate at law firm Howard Kennedy, Susie Al-Qassab,  highlights legal and practical points for employers to keep in mind.

Suspension

For staff facing criminal charges, if the alleged wrongdoing poses a threat to the business, colleagues or customers, the first step is often to suspend the employee.

It is important to remember that suspension should not necessarily be seen as a penalty. Suspension should be kept under regular review, and the employee should continue to receive their salary and benefits as normal.

If there are insufficient grounds to suspend initially, this can be revisited as more details about the allegations emerge. Unpaid suspension may be something that can be agreed with the employee in certain circumstances, but employers should tread carefully.

Investigation

Employers should carry out their own investigation on staff facing criminal charges prior to any disciplinary action, rather than simply wait for and rely solely on the results of a police investigation.

The accused employee must be given the chance to explain their side of the story to their employer before a decision over sanctions is reached. Take advice to ensure that an internal disciplinary investigation does not impede or undermine a criminal investigation which may be running in parallel.

The police may ask to see the evidence that is gathered during the course of the investigation of the staff facing criminal charges, particularly if the staff member makes an admission of criminal conduct.  The police may also ask those who took part in the investigation, or who gave evidence to it, to supply witness statement and to give evidence at trial.

The police cannot compel investigators and witnesses to give witness statements, but they can issue summonses requiring them to give evidence at trial and a court can order disclosure of evidence/and investigation report.

An order is likely to be granted unless the evidence has been gathered by a lawyer acting for the employer, and is therefore subject to legal professional privilege.

Disciplinary procedure

Employers must remember that disciplinary procedures and the ACAS Code of Conduct continue to apply in cases involving a criminal aspect. This means that the fact that dismissal is being considered must be made clear to the employee in advance, written warnings must be given (unless the conduct amounts to gross misconduct), alternative sanctions should be considered, and a right of appeal must be given.

Right to be accompanied

An employee has the right to be accompanied at a disciplinary hearing, although not necessarily an investigation meeting, by a trade union representative or a colleague in the usual way.

There is no general right to bring a lawyer but, in the case of alleged criminal misconduct it may be appropriate and should be considered, particularly if the consequences could be career-ending.

Sanction

After conducting their own investigation, employers do not have to wait for the outcome of criminal proceedings before conducting a disciplinary hearing and sanctioning (including dismissing) an employee.  Cases for staff facing criminal charges may take many months to get to court and waiting for the outcome could cause serious issues within the running of the business.

Employers are not bound by the outcome of a criminal trial.  If an employer decides through the disciplinary process that an employee’s conduct warrants dismissal, they are entitled to make this decision even if the employee is not charged. Conversely, just because the employee is charged with a criminal offence, that does not give an employer an automatic right to dismiss. Any dismissal must still be reasonable.

Reputation

Employers may wish to make a contribution to the cost of legal representation for an employee to defend a criminal case.  In the case of regulatory investigations, for example, the interests of the individual and the company may be aligned.

The conviction of an employee for a crime committed whilst carrying out duties for an employer is likely to have a negative effect on the employer’s reputation, so access to quality representation may afford the employee a better chance of avoiding being charged, or a conviction.

However, it is important to make it a condition that the contribution is kept confidential as there is potential for reputational damage should staff facing criminal charges eventually be found guilty of an offence.

Susie Al-Qassab is a senior associate in the employment team at law firm Howard Kennedy.

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