Here at Peninsula we often receive queries from our clients who are concerned about continuing to employ a worker who has either been convicted of a crime or accused of a crime. This issue has really come to the fore in recent weeks after they lost an unfair dismissal claim for €11,000 after dismissing an employee after he pleaded guilty to a charge of the possession of drugs with intent to supply. As such, now is as good a time as any to consider the issue of how criminal convictions might impact upon the employment relationship.
Why Might an Employer Wish to Dismiss?
Whenever an employer has contacted us with a similar query, the concerns they have largely included the reputational damage that the company might suffer if continuing to employ the worker, in addition to concerns in respect of the impact on other members of staff. Other concerns might be more subjective, such as a loss of trust in a check out assistant working on the tills after they have been convicted of a criminal theft offence.
Can an Employer Dismiss Fairly?
This is a more complicated question that it first appears. Employers need to be mindful that the Unfair Dismissal Acts state that an employer may dismiss an employee for one of the following reasons:
- Misconduct;
- Capability;
- Redundancy;
- Statutory restrictions; and
- Some other substantial ground (SOSG)
As the criminal conviction is unrelated to work, reasons 1 - 3 do not apply. Statutory restrictions would only apply if the conviction meant that the employee was not legally allowed to perform their role and this would only occur in very limited circumstances. As such, the employer will need to argue that the dismissal would fall under the 5th ground, namely that they had a substantial ground justifying dismissal. Case law shows that in order to do this the employer must be able to show that the conviction has led to a breach of trust and that there is some connection between the criminal act and their employment.
Previous Cases
There are a number of cases that have gone to the Employment Appeals Tribunal where an employer has dismissed an employee following their criminal conviction:
- Martin -v- Dunnes Stores Ltd. (UD 571/1988) - In this case an employee was one of four persons who broke into another retail store and stole items. The criminal charges were widely reported in the local media. Given the nature of the offence (theft in a retail store) and the nature of the worker’s employment (working in a retail store) it was held that the conviction was sufficiently connected to his employment and thus there was a breach of trust. The dismissal was held to be a fair dismissal.
- Brady -v- An Post (UD 463/1991) - In this case the employee had been convicted of an assault offence. It was found that this offence was not connected to his employment in any way and that there was no evidence of conviction making him unacceptable to other employees or that it would have a negative impact on the employer’s reputation. This dismissal was held to be an unfair dismissal.
The two above cases are a prime example of how criminal convictions cannot be categorized too easily as the fairness of the dismissal will depend very much on the specific set of circumstances in which it occurs.
The Tesco Case
In the Tesco case (Moore -v- Tesco Ireland Limited UD2423/2011), the claimant had been working for the company since 1996. In 2009, the claimant was charged with a criminal offence in relation to a supply of drugs with intent to sell, to which he pleaded guilty. When charged with this offence he informed the then Store Manager in August 2009 but continued in his employment. In July 2011, the claimant received an 8 month suspended sentence. On 02 August 2011, the claimant was placed on paid suspension, pending a full investigation into the impact this conviction would have on his employment. Throughout the investigation process the claimant argued that the conviction did not bring the company into disrepute and that it wasn’t even reported in the local papers. In addition, he noted that the company’s Personnel Manager had provided him with a character reference in the criminal trial. The employee was dismissed and his appeal was heard by the manager of another store and the decision to dismiss was ultimately upheld.
The EAT found the decision to dismiss was unfair in the circumstances and awarded the claimant €11,000 in compensation. The EAT held that whilst it was open for the company to consider dismissal as an outcome, they felt that not enough consideration was given to alternative sanctions, especially when considering the fact that the Claimant had worked with them for 15 years with an unblemished record. Although, it was not cited in their determination, one would also have to factor that there was no evidence of reputational risk or a connection between the offence and the claimant’s employment.
Imprisonment
The above cases have all considered criminal convictions where the employee has received a suspended sentence and not served any time in prison. Imprisonment differs greatly as even where there is no connection between the offence and the workplace, the fact remains that the employee is incapable of performing his job for a period of time. Dismissal is generally a safer outcome in respect of imprisonment as an employer can argue that the imprisonment has, in effect, frustrated the contract of employment as the employee is incapable of performing his contractual duties. However, a distinction needs to be drawn between an employee who is imprisoned for one week, for example, and someone who is imprisoned for a number of years. The longer the sentence, the more likely it will be that the contract has been frustrated. The shorter the sentence, the more likely it will be that an employee will win an unfair dismissal claim. Other factors include the employee’s length of service, whether or not they held a special position of trust with the employer, the need to hire a replacement, etc.
Conclusion
Disciplinary proceedings for employees who have received suspended sentences or who have been imprisoned is far from a straightforward matter. There a lot of factors that will need to be factored and it would not be advisable to apply a “one size fits all” approach. Whether or not an employer can safely dismiss will depend on a myriad of factors including the nature of the offence, the type of work the employee performs, the impact on fellow employees, the impact on customers, the employee’s length of service and previous disciplinary record etc.
Employers are urged to contact Peninsula Business Services if you have any questions on this topic and you may contact the 24 Hour Advice Line on 01 855 5050 and speak to one of our dedicated Employment Law Advisors.
