Why Employers Should Be Thinking Innocent Until Proven Guilty

The arrest and release of a supermarket employee for the murders of five prostitutes highlights the problems employers face when staff are accused of or suspected of a crime. Is there a duty to keep the job open while that person is under investigation? What happens if they are arrested but not prosecuted?

The crucial point before contemplating disciplinary action is that an employee is innocent until proven guilty.

Also note that the burden of proof in the criminal courts is greater than that required by an Employment Tribunal when considering whether a dismissal is fair. The prosecution has to show “beyond reasonable doubt” that the person is guilty of the offence whereas the employer only has to prove misconduct “on the balance of probabilities” ie more than a 50% chance that the person is guilty.

An employer must investigate the facts of the case and decide whether the offence is relevant to the employee’s work. While a criminal court may eventually find the employee not guilty, the employer would not be criticised if it had dismissed the employee providing it had followed a fair procedure and the offence is sufficiently serious to dismiss.

Some offences, particularly in relation to alcohol or drugs, may be covered by the contract of employment or governed by an industry’s regulatory body. For example, with alcohol related offences, airline pilots have to adhere to industry rules which state minimum time between “bottle and throttle”.

So if an employee is arrested and charged with a criminal offence:

1. If they are in custody and are unable to fulfil their free employment advice contract, obtain legal advice to ascertain at what point you could dismiss on the basis that the contract has been effectively “frustrated”.

2. If the employee has been released and is available to work an investigation interview must take place. If a decision is taken to suspend this should be on the basis that the employee receives full pay pending the outcome of any hearing.

3. If the company is satisfied with the employee’s responses and there is no negative impact on the company then the employee can return to work.

4. If the employee admits guilt or gives an unlikely defence and the offence negatively impacts on their ability to do the job or the reputation of the firm then hold a disciplinary hearing.

5. If the disciplinary panel finds the employee is likely to be guilty on the balance of probabilities (ie more than 50%) and the disciplinary action you take is ” within a range of reasonable responses” then you may proceed to dismissal. But all the circumstances of the case must be taken into consideration and a fair procedure must be followed.