Employers have recently been reminded of the rules governing when an employee charged with a criminal offence can be fairly dismissed
An employee who has at least two years’ service and is charged with a criminal offence cannot be dismissed just because they have been charged and the employer finds the situation abhorrent or upsetting – that would risk an unfair dismissal claim.
However, the employer may be able to dismiss them in those circumstances provided additional legal criteria are met, ie:
Circumstances can include, for example, the effect of the criminal charge on the employee’s ability to do their job (which depends on the type of job they do and the nature of the alleged criminal conduct), the impact on the employer and its reputation, and the impact on the employee’s relations with fellow workers and customers.
If a dismissal is fair on these criteria it can take place straight away. It will not matter if the charges are later dropped or the employee is acquitted, provided the employer reasonably and genuinely believed at the time, on the basis of its reasonable investigation, that the employee did what they were alleged to have done.
It may also be possible to terminate the employee’s contract of employment for ‘frustration’ of the contract if the employee is unable to do their job following an alleged criminal offence or is unable to participate in the reasonable investigation – for example, because they are being held on remand – although successful frustration cases are relatively rare.
Employers should ensure the dismissal of an employee charged with a criminal offence can be lawfully justified and fair procedures are followed and, if in any doubt, take specialist advice to avoid costly and time-consuming unfair dismissal claims.
Our suite of employment factsheets are available for members who employ staff.
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