Mugshots Over Headshots: The Tale of Missing Employees

Many employers will have had to deal with a situation where their staff member has been implicated in criminal activity, either in person or on line, which has directly impacted upon them being able to work. Below we discuss some scenarios and how each situation should be handled from an employment law perspective.

An employer is informed by a member of the public that their employee’s picture has been circulated in the local press as someone who the police would like to speak with about an incident outside a local pub on Saturday night. The picture seems to show them as an active participant.

It is important that the employer gathers all of the relevant information that is available before approaching the employee in question, not least because there can be a significant amount of misinformation circulated online and via social media.

If the employer does locate the information and is satisfied that it is their employee in these pictures, it will then be appropriate to consider on what basis any action may be taken. Employees can be disciplined for conduct outside of work so long as it affects the employee, or could be thought to affect the employee, when they are doing their work. An example of this may be that colleagues of this employee feel unsafe working with this individual going forward. Or it may be that there is a risk of reputational damage and that will form the basis of any disciplinary action.

In any action that may be taken, it is important to ensure that a fair disciplinary (or otherwise) process is followed and it would be sensible for the employee to be invited to an investigation meeting as soon as practicable where the evidence can be put before the employee and they can provide their version of events.

If they confirm that they were involved in the incident, then the police should be involved. It is important to note that by involving the police, this will not then prohibit disciplinary action being taken by the employer.

If the employee is detained by the police, the employer must consider various factors when contemplating how they will continue with the ongoing disciplinary matter. The employer could continue with the disciplinary provided that the employee is able to engage with this process, which may involve corresponding with the employee whilst detained or on bail, showing them all of the evidence gathered, and asking for their response. Any response should be considered carefully, along with any mitigation put forward.

If the employee is unable to participate in the disciplinary process on the advice of their criminal legal advisors, ACAS guidance suggests that the employee should be advised in writing that unless further information is provided, a disciplinary decision will be taken on the basis of the information available and could result in dismissal. ACAS however do warn employers that they should consider all relevant factors, not only potential pressure from the workforce to dismiss an employee and possible disruption to the business, before reaching any decision.

Alternatively, the employer may wait until the conclusion of the criminal proceedings. If an employee is found guilty, then a fair disciplinary process should still be followed however, it is worth noting that if a police investigation uncovers wrongdoing by the employee, then an employer may rely on the information supplied by the police when conducting a disciplinary process.

If the employer does not believe they have enough evidence to proceed with a disciplinary sanction, they may want to consider whether there is another substantial reason to take action, which could be the reputational damage caused, or impact upon colleagues and/or service users. In such scenarios employers should seek legal advice before taking formal action, including dismissals.

An employee hasn’t turned up for work. The employer is contacted by their next of kin to advise that the employee has been arrested and is on remand awaiting trial. Would you continue to pay them?

The employer would not need to pay an employee in this situation, as they are not able to work due to them being imprisoned. The employee is unlikely to be able to bring a successful unlawful deduction from wages claim in this scenario given they are not ready, willing and able to perform their duties.

An employee works with children and vulnerable adults, would this justify a more stringent approach to criminal conduct outside of work?

This will all depend on circumstances of each individual case, however, if a person is convicted of an offence involving violence, and their job involves contact with children or vulnerable adults, then this may justify a more stringent disciplinary sanction. There will of course, also be safeguarding considerations along with reporting obligations to regulatory bodies. The potential reputational damage factor may also be more significant for an employer who has a duty to discharge public sector principles and/other guidelines regarding behaviour.

An employee is given a custodial sentence as a result of their actions. Does this mean the employment contract is frustrated?

Frustration is a term used to describe the situation where a contract is treated as discharged due to an event which has occurred that means further performance of that contract is impossible, illegal or radically different from that contemplated by the parties. This scenario will be fact specific and will depend upon the length of the sentence handed down. A longer prison sentence may be deemed to have frustrated the contract at the point of sentencing but we would suggest taking legal advice if you are seeking to rely on frustration.

An employer is considering issuing a memo to staff to advise them to think twice before engaging in conduct outside of the workplace that may impact their ability to fulfil their role – should they do this?

It is always important to be mindful of an individual’s right to freedom of expression, but it would certainly be sensible to remind staff that their conduct outside of work could result in disciplinary action being taken and that any bullying and harassment within the workplace will not be tolerated. A reminder of where to access the relevant policies and procedures would be prudent, along with a reminder of how staff impacted by the riots can access support and assistance, for example by speaking with HR or through an Employee Assistance Programme.