Posted on Mar 31, 2016 in Employment by Amy Jones
What can, and should, an employer do if an employee is charged with a criminal offence?
The recent conviction of Sunderland player Adam Johnson for sexual activity with a child has been widely publicised. You may also have noticed that his suspension after he was arrested and the subsequent lift of the suspension was also heavily commented on in the press.
At the time, the Club said "We recognise that the player is entitled to re-commence his duties with the Club while the legal process continues. He will therefore return to training,” and "The Club's own investigation cannot continue until the conclusion of the legal process." The Club has attracted criticism for this approach and for allowing a “paedophile” to continue to play whilst the criminal investigation was ongoing.
So, what can an employer do if an employee is charged with a criminal offence?
Before taking any action, it is important to note that a police investigation, criminal charge or conviction related to off-duty conduct is not necessarily a reason for disciplinary action in itself, if the matter has no bearing on the employee's suitability for the job or their relationship with their colleagues, the employer or its customers. Employers should avoid knee-jerk reactions and instead take time to consider whether the investigation, criminal charge or conviction is related to the employee’s employment and if so, whether suspension and potential disciplinary action is appropriate.
Suspension is a serious step and prior to suspending, an employer must be satisfied it has reasonable grounds for the suspension in order to avoid breaching the implied term of mutual trust and confidence.
However, in instances of serious or gross misconduct, an employer is likely to be justified in suspending an employee who is being investigated where there is a potential threat to the business or other employees, or where it is not possible to properly investigate the allegation if an employee remains at work, e.g. because they may destroy evidence or attempt to influence witnesses. It may also be appropriate where relationships at work have broken down.
In all cases, employers should be careful not to give the impression of having pre-judged this issue and suspension should be handled sensitively. The period of suspension should be as short as possible and the suspension decision should be kept under regular review with suspension being lifted if the circumstances requiring suspension change.
In Adam Johnson’s case, it appears the Club considered the allegations against him were not directly connected to his role as a footballer and, therefore, his continuing to play football would be unlikely to have an detrimental impact on the criminal investigation or any internal investigation. Accordingly, the Club may have believed that it did not have grounds to suspend him. However, it is clear that a premiership footballer’s role consists of more than kicking a ball and footballers, whether they like it or not, are role models for the public and fans. Therefore, the allegations against him could be said to be related to his role and, accordingly, in our view, the Club would have had grounds to continue to suspend Mr Johnson whilst the investigation was ongoing.
However, it is important that suspensions are not unnecessarily long and it is not correct that the Club could not proceed with its own investigation whilst the police investigation/legal process was ongoing.
Concurrent disciplinary and criminal investigations
There is no requirement for employers to wait for the outcome of criminal proceedings before conducting a disciplinary hearing, particularly when the employee has been suspended on full pay, as this will usually take several months. The Acas Code requires the employer to hold any disciplinary hearing without unreasonable delay and the non-statutory Acas guide states that "where the matter requires prompt attention the employer need not await the outcome of the prosecution before taking fair and reasonable action".
In disciplinary proceedings, an employer is not playing the role of a judge and the standard of evidence required is not the same as is required for a criminal conviction. The test as to whether the employer has fairly dismissed an employee is the same whether or not the police are involved, i.e. the employer must have a reasonable belief in the employee's guilt, based on a reasonable investigation, and the level of investigation carried out must have been within the "band of reasonable responses".
The non-statutory Acas guide suggests that employers should carry out their own investigation and disciplinary hearing. It is not sufficient for the employer to interview an employee as part of a preliminary investigation and then dismiss him on the basis that he has been charged by the police. Once the charges had crystallised, an employee should be given the opportunity to attend a disciplinary interview and reply to those allegations, before the employer decides whether or not to dismiss them.
However, if a police investigation uncovers wrongdoing by the employee, the employer may rely on the information supplied by the police when conducting its disciplinary process. In extreme cases, the circumstances may be so blatant (for example, where an employee has been caught "red-handed", arrested and charged) and sufficiently brought to the attention of the employer without the need for the employer’s own detailed investigation.
An employer is not bound by the outcome of a police investigation or criminal trial. There will be cases where it is appropriate for an employer to continue its investigation after the police have decided not to press charges or the employee has been acquitted at a criminal trial, e.g. where there is evidence of dishonesty which is not sufficient to secure a conviction but which is sufficient to enable the employer to form a reasonable belief that misconduct occurred. It is our understanding that the police had advised the Club that Adam Johnson had sent salacious text messages to a female fan under the age of 16. This information would have been sufficient for the Club to base its investigation on and to proceed with internal disciplinary action.
Often, an employee may refuse to respond to questions as part of an internal investigation on the basis that it could prejudice a pending trial or police interview. There is no rule that, once an employee has been charged with a criminal offence, an employer cannot dismiss him if the employee is advised to say nothing until the trial. The employee should be given the opportunity to state their position, even if they do not take that opportunity and the investigation and interview are fruitless. However, the employee should be warned in advance that if they refuse to cooperate with the internal investigation, the employer will proceed to take a decision on the available evidence and without the employee’s input.
Disciplinary proceedings where there are ongoing criminal investigations should be handled with care and we recommend employers take legal advice at the outset.
Amy Jones is a Senior Solicitor in Thorntons Employment Law team. If you have any questions about this, or any other employee related issues, please contact Amy using the details below.