Serious crimes such as physical assault, theft and rape are impinging upon many lives in today's Britain. What can you 鈥� as an employer 鈥� actually do if one of your employees is either charged or convicted? David Craik investigates what is often something of a grey area for professional security managers.
Picture the scene. It's early on a Monday morning and news filters through that one of your employees has been arrested and charged following a physical assault on another man outside one of the town's local nightclubs. Naturally, you're shocked and angry at your employee's alleged actions.

Your first reaction is to sack him, but what's your legal position? Does that member of your security team have rights separating his private life from his business life? Can you do anything at all about the situation?

Christopher Over, a solicitor at law firm Wayne, Dyke and Over, is quick to acknowledge the dilemma. "The essence of any employer's reaction to news that one of their employees has been charged with a serious crime such as a 'glassing' or rape is to assess whether or not the offence in question is directly referable to that person's employment," states Over. "These offences don't necessarily mean that someone can't do their job properly. Any dismissal, therefore, could be judged as unfair."

However, Jane Byford 鈥� an employment law solicitor at Birmingham-based legal practice Martineau Johnson 鈥� believes that the term 'referable' enjoys a much wider definition than that. Opines Byford: "If the offence impinges on the employee's contract then an employer can take action. That is to say, if the charge affects the reputation of a firm or if it otherwise brings into question the reliability and honesty of the employee concerned."

Fellow employment law solicitor Mark Ellis of Aaron and Partners adds with conviction: "If an employee is arrested and charged with downloading child pornography on the office's computer network it may then be appropriate to say that there has been a breakdown in trust between employer and the employee. Employers should then assess whether a charge means that an employee can't do his or her job properly anymore."

Christopher Over agrees that our introductory scenario could mean "the employee is unstable, so if he or she is dealing with members of the public on a regular basis, for example [as indeed do most security operatives] then it would be referable to their employment". In a case like this, how should managers/employers proceed in the wake of such a charge?

Jane Byford recommends suspending the employee concerned, and then launching a disciplinary process which will include conducting an investigation into the incident in order to gather facts and establish the potential seriousness of the case.

"This is a sensible approach, as a trial can often take some time to reach a Court of Law," says Byford. "Any investigation may lead to a dismissal if the employer has come to a 'reasonable view on reasonable grounds after a reasonable investigation'".

Beyond all reasonable doubt
It's also important to stress at this point that a disciplinary charge doesn't have to be proven beyond all reasonable doubt. All the employer needs to have is a reasonable belief that the charge leads to an impingement of the employment contract. An investigation may also be launched if an employee is merely suspected of having carried out the crime.

"Say you're a retail security manager," comments Mark Ellis, "and one of your members of staff has been at a given till all day. At the end of that day when the takings are counted, you find that particular till to be 拢100 or so 'light'. As a result, you then launch a fair disciplinary procedure, and an investigation into the employee concerned. You come to a reasonable conclusion that the employee is guilty of theft. Even if at some point during the next week the real culprit is found, you're protected from cries of unfair dismissal."

The essence of any employer鈥檚 reaction to news that one of their employees has been charged with a serious crime such as a 鈥榞lassing鈥� or rape is to assess whether or not the offence in question is directly referable to that person鈥檚 employment. These offe

Byford describes this particular scenario as "honest belief on reasonable grounds". This is the basis of the law on unfair dismissal, which occurs when an employer doesn't have a fair reason to dismiss an employee, or the employer did have a fair reason but the matter was dealt with unfairly. The burden of proof is on the balance of responsibilities.

Of course, an employer can wait until a criminal trial has been held. If a 'guilty' verdict is reached, though, how should the employer proceed with the ultimate aim of dismissal?

"In theory," suggests Byford, "an employer may launch a disciplinary procedure against the employee. Since a guilty verdict has been found, an employer investigation may not now be necessary, but the employee should still be afforded the right to put forward their case. If the employee has been sent to prison, an employer should write to that employee and state that his or her conviction has impinged upon their contract of employment, and that you have been left with no alternative but to dismiss them. You can then ask them for any comments to be taken into account."

Custodial sentence: what next?
The employer may stand by this member of their team even if this particular security operative receives a custodial sentence. The employer can also leave the employee's job open until the sentence has been served. In fact, in most circumstances the employer can also keep paying that employee a wage if they so wish. If an employer does indeed choose to keep the job open, but suspends the employee's wages, then clearly no National Insurance contributions need be made.

However, the employee would face difficulties when it comes to pension contributions. As you'll be only too well aware, an employee has to make a certain number of contributions during their working life in order to qualify for a state pension. The potential contributory years that an employee may miss while serving his or her sentence cannot be paid in retrospect. In such cases, the Department for Work and Pensions recommends looking at Stakeholder pensions ('Staking a claim', SMT, April 2001, pp36-38).

So there we have the theory. What of real life cases? Do they differ?

One security manager in the transport industry (who declined to be named for legal and personal reasons) told SMT that he faced a dilemma upon discovering that one member of the company's workforce had been stealing pallets. "It was very sad," says the manager concerned. "The worker in question had been with the company for some time, but I just couldn't let the matter drop. The firm's reputation would have been destroyed. If I'd just looked away it would have given others carte blanche to do the same thing. I investigated, found proof and gave the worker the option of resigning or being sacked."

At the end of the day, employers must take a realistic view on such occasions. If a charge or conviction is deemed to be directly referable to the employee's job 鈥� and could damage the company's reputation or endanger the trust between worker and boss 鈥� then the employee responsible can expect to be dealt with swiftly.

The Rehabilitation of Offenders Act 1974: all the essential details

THE REHABILITATION OF OFFENDERS ACT 1974 protects prospective employees against rejection for 鈥� or dismissal from 鈥� a job based purely on their past misdemeanours. If someone has been convicted of a criminal offence but is not convicted of a further indictable offence during a specified period, that individual will normally start again with a clean sheet. The length of the rehabilitation period depends upon the sentence imposed, while the time starts to run from the date of conviction. Some offences, however, can never be eradicated (including any conviction which results in a prison sentence of more than 30 months). As an employee, if you are asked whether or not you have a criminal record, what you then have to say in response depends on whether your convictions are spent. The period of time which must elapse before a conviction becomes a spent conviction varies from three months to ten years according to the nature of the offence and the age of the offender. When a conviction does become spent, a job applicant is not required to disclose that it ever happened. It should be noted that failure to disclose a spent conviction will not amount to proper grounds for dismissal, nor indeed exclusion from any given job. There are exceptions to this general rule where an employer is entitled to use a previous or spent conviction as a basis for refusing employment. Employment law solicitor Jane Byford of Martineau Johnson advises including a clause in any employment contract giving 鈥渁n example of gross misconduct which could impinge on the trust between employer and employee鈥�. When convictions become spent
If over 18 years of age, a prison term of six months or less will be spent after seven years, while a spell inside of more than six months (and up to 2.5 years) is not spent until a decade afterwards. Certain types of fine, probationary periods, community service and combination orders carry a five-year waiting time before becoming spent in the eyes of the law. Further details on the Rehabilitation of Offenders Act 1974 can be downloaded from the Home Office web site. Take a look at: www.homeoffice.gov.uk

Source

SMT

Postscript

Security Management Today readers who would like some more detail on this topic are advised to take a look at two salient web sites, namely those belonging to the Department for Work and Pensions (www.dfwp.gov.uk) and the Criminal Records Bureau (www.crb.gov.uk)