Your employee’s been arrested - what now?

Across the country, many employers may now be in the unfortunate position of having to manage an employee who is facing prison time.

If ever an employee gets arrested, this raises lots of questions for HR – like what are your next steps as an employer? How does this affect pay? And if the allegations are so bad, can you instantly dismiss your employee even if you’re not sure they’re guilty?

Here’s how you can safely manage this very difficult scenario in line with HR best practice.

You find out your employee has been arrested…

If you find out your employee has been arrested, firstly what you shouldn’t do is immediately jump to conclusions.

Being arrested doesn’t always mean that your employee has committed a crime. So, you shouldn’t assume anything until you have all the information.

Regardless of why your employee has been arrested, it’s important to remember that they do still have employment rights.

Your first step should be to try and speak to your employee and find out what’s happening. If they’re currently in police custody, be aware that you may have to wait for some time before you can speak to them. And even if you can, your employee might not be able to reveal anything until their trial.

That doesn’t mean you can’t begin to carry out your own internal investigation. This is separate to the police investigation. In your investigation, you should put the focus on your working relationship with your employee and what this arrest means for your business.

Take care not to do anything that might interfere with the criminal law side of things. In some cases, you may have to suspend your employee while the investigation is happening.

You’re considering dismissal…

You shouldn’t dismiss your employee just because they’ve been arrested. This reason alone is not a legally fair reason to dismiss them.

You have to look at whether the crime your employee is accused of or has been convicted of is serious enough to make dismissal the most reasonable conclusion. It also has to fall under one of the five statutory fair reasons for dismissal in employment law:

1. Conduct
2. Capability
3. Redundancy
4. Statutory ban
5. Some other substantial reason (SOSR)

Read more about the reasons for fair dismissal here.

You would also need to consider the type of job and environment your employee works in, as well as the nature of the crime and consequences of the arrest for your company.

The timing is important here as well. If your employee has only just been arrested, this is not the same as finding out they have a previous conviction that is now “spent”.

If a certain amount of time has passed since your employee’s conviction and it’s “spent” in the eyes of the law, they’ve worked for you for at least two years and then you tried to dismiss them, that would be automatically unfair.

You find out the allegations against your employee are really bad…

Depending on the nature of the charges, you may want to dismiss your employee with immediate effect.

If that is the case, you should first give your employee an opportunity to tell their side of the story. They might not want to and that’s okay, but you still have to offer it as part of a fair process. You should also make sure your employee is aware that you are thinking about ending their employment.

If your employee has worked for you for two years or more and you dismiss them without carrying out a full and fair investigation and a formal hearing, you would be vulnerable to facing an unfair dismissal claim.

And under a new government, this protection could soon apply to all employees from day one on the job.

So it’s important that if you are considering dismissal, you carry out a full and fair dismissal process first – otherwise a tribunal might say you’ve acted unfairly.

You decide you want to go ahead with a dismissal but you want to make sure you’re being fair…

A tribunal will consider a dismissal fair in most cases as long as you’ve followed a full and fair process. Plus, you’re able to show you dismissed your employee for one of the five fair reasons mentioned earlier and that you acted reasonably when doing so.

Provided you’ve also followed procedure, there are certain reasons for dismissal that a tribunal is likely to consider fair.

In the context of an arrest, this includes the following:

• Your employee will be sent to prison and cannot continue their employment.
• The nature of the crime makes your employee unfit to continue doing their job role. For example, they’re a delivery driver facing a criminal charge for drunk driving.
• The arrest has led to reputational damage for your company.

Note: in order to stand up against an unfair dismissal claim, you would need to be able to prove how the arrest has caused damage to your reputation.

It’s easier to justify a fair reason for dismissal when your employee’s crime is directly related to their job i.e. a care worker arrested for abusing someone in their care.

But even if their crime isn’t directly related to their job and your employee continuing to work for you would mean you lose business, that may also be a fair reason for dismissal.

You’re waiting to find out if your employee is guilty…

Your employee could be waiting for their trial for a long time, so you don’t have to wait to find out if they’re guilty before you can follow a fair dismissal process.

Whether you want to wait to make the call is your choice. As long as you followed a thorough and fair process for dismissal, have a fair reason to dismiss your employee and gave your employee an opportunity to give their side, you can dismiss them fairly without knowing if they’re guilty or not.

You’re now questioning whether dismissal is the right call…

You don’t have to see dismissal as the only option after your employee’s arrest.

What you decide to do is your decision. As part of your investigation, you should consider the nature of the crime and how that holds up against their position in your company.

Is the crime related to the work your employee does? Has there been a serious breach of trust in the working relationship? Has your employee abused their power? If they carry on working for you, could this hurt your business?

These are important questions to ask when you’re considering how to move forward.

You don’t know if you have to keep paying your employee while they’re in custody…

While your employee is in police custody, you don’t have to keep paying them during this time. That goes for employees who are serving a prison sentence and those who are on remand in prison waiting for their trial.

Your employee ends up being convicted and sent to prison…

If your employee ends up going to prison, this doesn’t automatically end their employment. You still have to take steps to do that.

Even if your employee physically won’t be able to work for you because they’re in prison, you would still need to follow a fair process to end their employment and make sure the termination reasonable.

To find out more about how to manage dismissals and employees with criminal convictions, you may find the below resources useful:

• Our guide to fair and unfair dismissals at work
• Our guide to carrying out a disciplinary investigation at work
• Our guide to employee DBS checks
• Brainbox – ask a question and get an instant expert answer

And if you have any questions and would like to speak directly to an employment law expert, you can also book a free advice call below: