Unfair Dismissal of an Employee on Grounds of a Criminal Conviction

Employees have specific rights and protection under the Employment Rights Act 1996, including the fundamental right not to be unfairly dismissed. Unfair dismissal occurs when you are dismissed from your position but your employer did not have a fair reason for doing so.

When is dismissal fair?

For an employee to be dismissed fairly by their employer, the employer must show that there was a fair reason for the dismissal. Employers must then demonstrate that the dismissal was reasonable. Employers should have a grievance and disciplinary procedure that it must follow in every case, and should also abide with relevant Acas guidelines – otherwise dismissal may not be fair.

There are many reasons why an employee may be dismissed, including incidents of gross misconduct. Gross misconduct can include a criminal offence in workplace.

Can an employee be dismissed fairly because of a criminal conviction?

Where an employee has been arrested for, or has been charged or convicted with a criminal offence, an important issue is whether the alleged offence/conviction directly affects their work. If it does, employers need to consider whether they genuinely and reasonably believed that the individual was in fact guilty of the offence in question before deciding whether or not to dismiss.

Importantly, a criminal charge or conviction does not, of itself, usually justify unfair dismissal – or even disciplinary action itself. It must affect the employee’s ability to perform their work.

Would dismissal because of a criminal conviction be regarded as a fair reason?

Not necessarily. It will depend on the nature of the offence and other factors, such as the effect on the worker’s ability to do their job, and the adverse impact on relationships between the employer and others.

To be regarded as fair, the reason for the dismissal must be for one specific reasons, including:

  • a reason related to an employee’s conduct
  • a reason related to an employee’s capability or qualifications for the job
  • because a statutory duty or restriction prohibited the employment being continued
  • some other substantial reason of a kind which justifies the dismissal

The employer must also have acted reasonably in treating that reason as sufficient for dismissal.

Conduct

In some cases, the criminal offence will have taken place during working hours. For instance, a lorry driver may have caused death by dangerous driving, or an employee may have seriously assaulted a colleague after losing their temper. In these clear-cut case, dismissal will be justified (instant dismissal in some cases). The same applies in most cases of dishonesty.

In other cases, it may not be so clear. For example, an employee may be convicted of theft in the workplace, and the employer may be unsure whether it was that employee who did it. If the employee is convicted anyway, dismissal could be fair and reasonable, though other factors may have to be taken into account.

What other factors would be taken into account when deciding whether the dismissal was justified?

Whether dismissal because of a criminal conviction will be regarded as justified depends on 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 involving contact with children and they have been charged with, or convicted of a sexual offence in relation to children, then dismissal would most likely be fair and justified.

How can an employer show they acted reasonably when dismissing an employee following a criminal conviction?

The employer should conduct proper investigations before making the decision whether or not to dismiss the employee. If the employer undertakes these enquiries and provides the employee with an opportunity to explain what has happened, then finds reasonable grounds for concluding that the employee can no longer be retained, it will usually be found that the employer acted reasonably and the dismissal was fair.

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

If the employee is acquitted of the criminal offence with 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 their actions, the employer may open themselves up to a claim for unfair dismissal.However, in circumstances of gross misconduct, such as violence in the workplace, justifying instant dismissal, this is unlikely.