What do I do if my employee is accused of a crime?

The relationship between employers and employees is highly important and it is understandable that you will be concerned about the repercussions if an employee is accused of a crime. When faced with this, employers must be careful of the accused employee’s rights, their business’ reputation and any investigations underway.  Our Employment Law team explains more here about how you should proceed in this situation, including how to carry out investigations and what happens if and when the police become involved.

Do I need to wait until the accused employee is charged or convicted?

If an employee is accused of a criminal act, you do not need to wait for a charge or conviction and you should consider the impact of the criminal allegation, if any, at your workplace. Both the accused and purported victim’s perspective on the alleged crime should be considered and how their viewpoints could affect the business, for example, if their work duties result in them having regular contact. It is also important to consider how any possible risk factors could impact other employees or any person at the business, or if the accused’s crime has put them under police or court conditions which could hinder them carrying out their work.

In cases of accused rape or sexual assault by a co-worker, the Advisory, Conciliation and Arbitration Service (Acas) provided extremely clear guidance stating, “if the incident has been reported to the police or it is going through a court, [the] employer must still investigate [the] complaint.".

Carrying out investigations

As visible from Acas’ guidance, your actions should always commence with an investigation. This allows all the relevant facts regarding both the accused’s guilt and innocence to be considered and makes it clear whether any disciplinary action is necessary.

You should decide if any temporary arrangements are needed while the investigation takes place, for example, it may be beneficial to consider whether the accused should:

• Alter their place of work to another department
• Have a different seating arrangement
• Work from home if possible.

In the situation where the alleged victim is a colleague, it could also be worth considering if the accused’s duties could be slightly modified if they come into frequent contact with the alleged victim while the investigation takes place.

Suspension is always a key disciplinary action to consider but should not necessarily be used straight away. It is important if employees are suspended that they remain on full pay, are suspended for the least time possible and that it is not seen as a penalty but purely for investigation purposes where their presence in the workplace could hinder such investigations.

Where the case is particularly sensitive it is vital that safeguards are put in place for your investigations; consulting with an expert could be necessary as not all employers will have had experience in very difficult matters.

What if my employee is under police investigation?

Police investigations could occur in any case and your employees’ refusal to cooperate with your investigations could be a result from this if they have been legally advised. However, this should not prevent you from proceeding with your own investigation. Acas guidance states employers’ investigations should investigate the facts “as far as possible” without the need to wait for a criminal outcome in Court.

Despite police investigations running alongside, your decisions do not need to be identical to the police decisions; while an employee may not be guilty criminally, further disciplinary action could still be required in the workplace.

Where your employee continuously refuses to cooperate with your investigation, Acas guidance provides this should not prevent it from being carried out and that the accused should be warned in writing that further refusals could give rise to dismissal.

No matter the evidence that you are able to collect, in order to come to a decision, you need reasonable belief in the accused’s guilt which must have stemmed from a reasonable investigation within the “band on reasonable responses” to avoid any claims of unfair dismissal.  You will need to ensure a fair and thorough process is followed throughout both the investigation and any subsequent disciplinary in order to mitigate against any risks of unfair dismissal claims arising.

An employee being accused of criminal activity is a serious issue, and must be treated accordingly.  While you may wish to rush to a decision, we would always recommend you taking appropriate legal advice to ensure you are taking the right steps to minimise the likelihood of a claim being brought against you or any additional damage being caused to your business and its reputation.  To discuss any concerns in your workplace, you can contact us today on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.