Employment relationships are fundamentally about trust. So it's not surprising that employers are very concerned about the implications of a member of staff being investigated for a criminal offence. Businesses facing this situation need to maintain a careful balance between the employee's rights, the needs of the business and the need not to hinder a police investigation.
In most cases, employees aren't obliged proactively to inform their employers if they are being investigated by the police (employees in certain regulated roles or who work with children or vulnerable adults may have an express contractual duty).
If criminal allegations come to an employer's attention, it's important not to suspend the employee as a knee-jerk response. Instead, the employer should consider whether the allegations could have an impact on the employment relationship – e.g. is there a potential risk to other employees or customers, or a serious risk to the business' reputation? Assessing this will usually entail giving the employee an opportunity to explain their position and asking police to provide details of the investigation and the anticipated timescale (although the police may not be forthcoming).
A key question for employers is whether to take disciplinary action against an employee who has been investigated by the police. Again, this shouldn't be an automatic response; the ACAS Guide to Discipline and Grievances states that the employer needs to assess what impact the allegations have on the employment relationship.
If the offence is connected with the employee's work, the police may seek access to workplace records and data. Employers should generally cooperate with such requests - in most cases disclosure of personal data for the purposes of an investigation will be lawful under the Data Protection Act 2018.
Another tricky dilemma is how far the employer's actions should be dictated by the progress and outcome of the police investigation. If the employee is charged with an offence, it could take months for the case to come to trial – does the employer have to wait for the outcome of the trial before it can take action? The answer is no, but the employer's actions need to be fair and reasonable in order to be able to defend any unfair dismissal claim. So the employee should be given a fair opportunity to respond to the allegations (although they may choose to make no comment) and the employer should consider all available relevant information when reaching its decision.
Employers are generally entitled to assume that information provided by the police is accurate, but if there is a conflict of evidence which casts doubt on that information, the employer needs to assess the evidence and form its own judgement. In some cases, the employee's bail conditions may make their continued employment effectively impossible (e.g. if they are prohibited from having contact with certain colleagues).
If the employee is acquitted or the case is dropped, that doesn't necessarily mean that the employer cannot dismiss the employee (bearing in mind the higher burden of proof in criminal trials). But it does mean that the employer has to consider carefully why dismissal may be justified (e.g. damage to reputation, impact on customers), give the employee an opportunity to respond to that case and weigh the impact on the business against the impact on the employee.
Conversely, dismissal will not always be fair even when the employee has been convicted of an offence, so dismissal should not be an automatic sanction. The employer must still consider the impact on the employment relationship and whether dismissal is justified.
Criminal investigations involving employees can have multiple legal and reputational risks for businesses. Together with our Business Crime team, we frequently advise businesses grappling with these dilemmas. For more information, please contact our Head of Employment, Jane Amphlett, or Head of Business Crime and Regulatory, Ian Ryan.