Employee is guilty of criminal offences outside working hours. Is there anything I can do?

March 11, 2016

Employee is guilty of criminal offences outside working hours. Is there anything I can do

The recent high profile case of Sunderland footballer Adam Johnson has raised a lot of questions in the HR world.  Most obvious of which is the question of when is it ok to dismiss an employee who is charged with or convicted of an offence.

Johnson was dismissed after he pleaded guilty to two charges of grooming and kissing a girl of 15. After being found guilty of sexual touching the judge warned that a custodial sentence is inevitable.

It has now been revealed that Sunderland Football Club’s chief executive Margaret Byrne was aware of his sexual activity with a 15-year-old fan more than a year ago.

Employees have the right to a private life outside of work, the company cannot easily enforce restrictions on what the employee does during this time. As such it not uncommon for employees to find themselves in trouble but how and when does this impact on their ability to carry on working?

Do employees have to tell their employer of criminal charges/offences?

In many cases the employer will not know that the employee has been charged or even that they’ve been convicted of an offence outside work. There is no obligation for employees to tell their employer unless they are specifically asked, or if the employment contract requires them to disclose such issues.

Under the Rehabilitation of Offenders Act, employees have no obligation to disclose spent convictions unless they work in certain professions, regulated occupations, with children or vulnerable adults. When asked the question, unspent criminal convictions have to be disclosed.

Can you dismiss an employee who has been charged with/convicted of a criminal offence?

Despite what you may think, there is no automatic right to dismiss an employee because they have been charged with or convicted of a criminal offence.

When considering the options employers must take into account the effect of the charge/conviction on the employees continued suitability to do their job. This will also include the impact that the charge/conviction will have on their relationship with their employer, work colleagues and customers, the nature of the offence, the nature of the person’s job and the employee’s seniority or rank.

If there is likely to be no adverse effect on the employees suitability the charge or conviction should have no bearing on any decision.

It may be the employee is unavailable for work because they are in custody, or their bail conditional prevent them from being able to attend work. In that case the employer will need to consider how long this will be the case for and how long the job can be kept open for.

Certain offences will no doubt affect an employee’s suitability for their job, and impact on workplace or business relationships. Charges or convictions of theft would lead the employer to question their ability to trust a retail worker who handles money as part of their role. Other charges such as sexual offences are likely to cause most damage to working relationships and result in fellow workers, customers or supplier being unlikely to want to work with or do business with someone linked to such offences.

The main point for many businesses to consider is the damage that such charges/convictions can cause to their reputation. Sometimes the decision to disassociate itself from an employee’s bad behaviour is about sending the right message out. However, employers should not simply make assertions that their reputation has or could be been damaged. If they want to dismiss an employee on this basis they would need to point to specific examples of losing contracts due to the charge or conviction.

In Sunderland’s case, with the court case receiving such high profile reporting in the media, dismissal is likely to have been in order to protect the clubs standing with fans as a family club, its general worldwide image, and because his teammates might object to playing alongside him.

Before reaching a decision, the employer needs to take into account the sentence awarded. Should this be a prison term, how long it is for and again if it would be viable for the job to remain open for the employee.

If this situation is relevant and you need more help with considering the dismissal of an employee who has been charged or convicted please do not hesitate to contact H.E.L.P.

This post is in: Employment Law Blogs

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