Unfair dismissal of an employee on the grounds of a criminal conviction

Unfair dismissal

Employees are provided with certain rights under the Employment Rights Act 1996. One of the fundamental rights guaranteed by this Act is that employees cannot be dismissed unfairly.

What does an employer need to do in order to dismiss an employee fairly?

For an employee to be dismissed fairly by their employer the employer must show that there was a fair reason for the dismissal. One this fair reason has been established the employer will then need to demonstrate that the dismissal was reasonable.

Can an employee be dismissed fairly due to a criminal conviction?

In the situation where an employee has been suspected of a criminal offence or they have been arrested on suspicion of a criminal offence the real issue to look at in the employment context is whether the employer genuinely believed on reasonable grounds that the individual was in fact guilty of the offence in question.

In a similar way to the way that guilt will be established in the criminal context an employer should try and establish beyond all reasonable doubt that the employee is guilty of the particular matter with which they have been criminally charged.

Would a dismissal on the grounds of a criminal conviction be regarded as a fair reason?

Whether an employer wishing to dismiss an employee on grounds of a criminal conviction is regarded as fair may well depend upon the nature of the conviction.

In order to be regarded as fair the reason behind a dismissal must fall with certain prescribed factors. In relation to a criminal offence the factors which may apply in this case will be the conduct of the employee or any other substantial reason.

How could the criminal offence be in relation to the conduct of the employee?

In some instances the criminal offence for which the individual employee has been charged may have occurred during working hours. On these grounds the conduct of the employee in committing a criminal offence at work may well be justified.

What other factors may be taken into consideration when deciding whether the dismissal was justified or not?

Often whether a dismissal on the grounds of a criminal conviction will be regarded as justified depends upon the nature of the offence and the job with which the individual is tasked with doing. For example if the individual works in a job which involves contact with children and they have been charged with a criminal sexual offence in relation to children then a dismissal on grounds of this criminal conviction may be regarded as justified.

How can an employer show that they acted reasonably when dismissing an employee on the grounds of a criminal conviction?

As stated previously when an employee has been convicted of a criminal offence and the employer wishes to take action the employer should try to establish if the individual is in fact guilty of the offence.

In order to show that they believed on reasonable grounds that the employee was guilty of the offence the employer should normally conduct proper enquiries into the matter. If the employer undertakes these enquiries and also provides the employee with an opportunity to explain what has happened, then finds reasonable grounds for coming to the final conclusion that the employee can no longer be retained it will usually be found that the employer acted reasonably.

Will this remain the case if the employee is subsequently acquitted?

If the employee is subsequently acquitted of the criminal offence in which he was charged the dismissal will still be regarded as fair if the employer acting in accordance with the above requirements.

What would happen if the employer dismisses the employee without making proper enquiries?

If the employer dismisses the employee without making proper enquiries or giving the employee a chance to explain the employer may well open themselves up to a claim for unfair dismissal.