Criminal charges or conviction

Guidance on discipline when an employee faces criminal charges or is convicted

Criminal charges or convictions

An employee should not be dismissed or otherwise disciplined solely because they have been charged with or convicted of a criminal offence. The question to be asked in such cases is whether the employee's conduct or conviction merits action because of its employment implications.

Where it is thought the conduct warrants disciplinary action the following guidance should be borne in mind: 

• the employer should investigate the facts as far as possible, come to a view about them and consider whether the conduct is sufficiently serious to warrant instituting the disciplinary procedure
• where the conduct requires prompt attention the employer need not await the outcome of the prosecution before taking fair and reasonable action
• where the police are called in they should not be asked to conduct any investigation on behalf of the employer, nor should they be present at any meeting or disciplinary meeting.

In some cases the nature of the alleged offence may not justify disciplinary action, for example off-duty conduct which has no bearing on employment, but the employee may not be available for work because they are held in custody or on remand. In these cases employers should decide whether, in the light of the needs of the organisation, the employee's job can be held open. Where a criminal conviction leads, for example, to the loss of a licence so that continued employment in a particular job would be illegal, employers should consider whether alternative work is appropriate and available.

Where an employee, charged with or convicted of a criminal offence, refuses or is unable to cooperate with the employer's disciplinary investigations and proceedings, this should not deter an employer from taking action. 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.

Where there is little likelihood of an employee returning to employment, it may be argued that the contract of employment has been terminated through 'frustration'. However, the doctrine is normally accepted by the courts only where the frustrating event renders all performance of the employment contract clearly impossible. It is normally better for the employer to take disciplinary action.

An employee who has been charged with, or convicted of, a criminal offence may become unacceptable to colleagues, resulting in workforce pressure to dismiss and threats of industrial action. Employers should bear in mind that they may have to justify the reasonableness of any decision to dismiss and that an employment tribunal will normally ignore threats of, and actual industrial action when determining the fairness of a decision. They should consider all relevant factors, not just disruption to production, before reaching a reasonable decision.