Criminal Convictions – Minding Your Own Business
September 2013
What type of criminal behaviour?...
Fraud
Petty Theft
Driving offences
Voyeurism
Drunk on an Aircraft
Culpable Homicide
Handling Stolen Goods
Benefit Fraud
Domestic Abuse
Rape
Assault
Possession of Cannabis
Failure to keep dogs under control
The right to a private life? When can a business take account of an
employee’s personal business?
Scenario 1 – Drink Driving Conviction
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A manufacturing company with 300 employees has heavy machinery
operating with fork lift trucks driving around the site on a regular basis.
All employees walk through part of the manufacturing plant to get to
their place of work. There is a drug and alcohol policy in place.
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The MD comes into your office, and hands you a copy of today’s Press
and Journal and highlights an article. One of the employees who has
nearly 5 years service with the company has been convicted of drink
driving. He has been fined and banned from driving for one year. The
article mentions the company he works for and that he was
significantly over the alcohol limit.
•
The MD is angry because he was unaware of this situation, the original
incident happened six months ago and you were also unaware, and
tells you that he no longer wants the employee working within his
organisation.
Scenario 1
What are you immediate thoughts?
Scenario 1 – some immediate questions/concerns
HR may have?
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What is the employee’s role in the Company?
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What are the job requirements of the role?
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Did he report his absence?
Is there anything else to suggest a drinking problem affecting work?
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Is driving a key job requirement?
When he was attending court, what reason did he give at the time for
his absence?
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How senior?
Health & Safety related?
Check his absence record?
Are there reputational issues that need to be managed?
Is there an obligation on the employee to report convictions?
What does the Company Drug & Alcohol Policy state?
Possible suspension?
Scenario 1 – Update
The employee is the HSEQ Manager, and a member of the senior management
team. He has been with the company for nearly five years. He recently rolled out
the company Drug and Alcohol policy to the whole workforce.
A major client also raises their concerns informally to the MD about the individual,
having read the article in the paper. The client seemed shocked and surprised by
the news. The HSEQ Manager attends client liaison meetings in his role and the
company regularly boasts that HSEQ is their “highest focus”.
You do some investigation and you learn that the HSEQ Manager separated from
his wife six months ago, and that there had been rumours that he had been drinking
heavily away from work. There had also been an increase in his level of
absenteeism during this time. However, when he is in work, he is performing
satisfactorily.
There is no requirement in his contract of employment to have a clean driving
licence but receives a car allowance of £7,000 per annum. He has a contractual
notice period of 6 months.
Scenario 1 Questions?
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Does his position and seniority make a difference? Would you handle
matters differently if a junior member of staff was convicted of drink
driving and lost his licence?
As he is accountable for the Company Drug & Alcohol Policy - should
this influence your potential approach?
What about his car allowance? Should that be removed?
Can you take into account reputational damage as a result of bad
press and negative comments from clients?
Do you think there is grounds to go down a disciplinary route? If so,
what would the allegations be?
What are the risks if the MD insists on dismissal?
What difference, if any, would it make to your approach if he was
sentenced to two weeks in jail?
Position and Seniority
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Moore v C and A Modes
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Norfolk County Council v Bernard
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Tabor v Mid Glamorgan County Council
Removal of car allowance? – depends on contractual terms
Reputational Damage
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Taylor v Somerfield Stores Ltd
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Myers v Metropolitan Police – reputational damage can include internal
reputational damage
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Towart v Northumberland Tyne & Wear NHS Foundation Trust
An employer may argue that employee’s conduct is likely to bring it into
disrepute, or damage its reputation. However, to justify dismissal,
damage must be more than merely fanciful. A fair dismissal will depend
on whether the employee’s actions result in actual or speculative
damage to the employer
If you do decide to discipline
Ensure the allegations are framed carefully. Don’t use bland or vague
terms. Give examples and be specific, In this scenario the allegations
should include:–
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A description of his role
Reference to loss in trust
Detail of clients who have commented on the situation
Detail any other feedback received
Detail of how the situation came to management’s attention
Be clear as to who it is alleged has lost trust and why, including
management views
– Mention damage to credibility
Risks of dismissal?
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Risks aside from Unfair Dismissal claim?
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Loss of good manager
Loss of his contacts/business
Will the conviction quickly be forgotten?
Is the MD over-reacting as to the real damage caused?
ACAS says
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Where a criminal conviction leads, for example, to the loss of a licence so that
continued employment in a particular job would be illegal, employers should consider
whether alternative work is appropriate and available.
•
Unfair dismissal claims are now capped at 1 year’s pay. Even if
successful with a claim, there would likely be a reduction in any award
for contributory conduct
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2 week jail sentence unlikely to materially alter matters, unless that
impacts on reputational matters or other internal matters directly.
•
2 week jail sentence will not be a frustration of contract
Scenario 2 – Fighting Employees
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The Engineering Manager comes into your office on Monday to make
you aware of an incident that happened over the weekend, looking for
your advice.
•
Two of his team members (Barry “B” and Charlie “C”) who work as
labourers in the workshop were involved in an altercation at the
weekend. C was arrested and spent the weekend in a police cell. He
has not turned up for work this morning (Monday) but it is believed C
will be charged and released this later on this afternoon.
•
B has arrived for work as normal, with some minor injuries. He has
requested that he can no longer work along side C as a result of what
has happened. The incident was also reported on local news and
radio and, although the company was not mentioned, every employee
is aware of the incident.
•
The Engineering Manager asks your advice as to how he should
handle the situation.
Scenario 2 – Fighting Employees
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Is there anything you need to do immediately?
Scenario 2 – Update 2
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C returns to work on Tuesday morning. He phoned the Engineering Manager
as soon as he was released and advised that he would return to work on
Tuesday. He also said he would take Monday as a paid holiday.
•
C explains the incident started following a number of racially inappropriate
comments which were made by B and his two friends (B’s two friends are not
employed by the company) to C’s girlfriend. When his girlfriend made C aware
of the comments he approached the three individuals concerned and asked for
an apology. This was refused, the situation then escalated. At this point C
confirmed both parties became angry and the subsequent scuffle broke out.
•
C confirmed that the police arrived pretty quickly. Whereupon B and his two
friends said that C had started the altercation. B, B’s friend and C all sustained
injuries. C says he only gave as good as he got. C has been charged with
assault. C strongly believes he was provoked and he was only defending
himself. He says he intends to defend the charge and plead not guilty.
•
B strongly denies C’s version of events, citing C as the sole instigator.
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C has stated that he intends to keep his distance from B but will attend work
and remain professional. B, on the other hand, has asked not to work with C.
Scenario 2 Questions?
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Is this a disciplinary issue? Events did not occur at work or on a work related
night out, does that make a difference?
Would you deal with matters differently if B had not been involved in the scuffle
and, instead, C had been charged with domestic abuse of his girlfriend?
Would you consider suspending one or both employees? Would you insist that
they continue to work together? If not, who would you move and why? What
would you do, if there were no other positions to move the individuals to?
Would you approach matters differently if the employees concerned worked
together offshore or in a H&S critical environment?
Would you deal with matters differently if C was accused of murder or culpable
homicide?
How long do you think it might take for the matter to reach trial? Will the
employer require to be involved in the trial process at all?
Might dismissal be ever be possible prior to the outcome of the trial if C
maintains that he is not guilty?
If C was found guilty six months later, could disciplinary action be instigated at
that point?
Is this a disciplinary issue?
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Singh v London Country Bus Services Ltd - Conduct does not have to
be something that occurs in the course of actual work, or at the actual
place of work, or even be connected with the work, so long as, in some
respect or other, it affects the employee, or could be thought to be
likely to affect the employee, when he is doing his work.
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Eggleton v Kerry Foods Limited
ACAS Code of Practice says: • “if an employee is charged with, or convicted of a criminal offence this
is not normally in itself reason for disciplinary action. Consideration
needs to be given to what effect the charge or conviction has on the
employee’s suitability to do the job and their relationship with their
employer, work colleagues and customers”
Scenario 2
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Suspension?
– It provides an immediate solution while you investigate, if you can’t move
employees
– C says he has done nothing wrong, it was not his fault and that he has no
difficulty continuing to work with B. Is there a reason to penalise C
because of B’s view?
– Suspending only C might suggests pre-judging who is at fault
– H&S concerns. Possible SOSR dismissal.
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Depending on the severity of the criminal charges it may affect matters
– Kearney v Royal Mail Group Ltd
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Judicial process (timings)
Not Guilty Plea?
Might dismissal be ever be possible prior to a trial if the
employee maintains that they is not guilty?
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Assess the effect on the business
ACAS says
– In cases where the employee is not available for work because
they are in police custody, employers should decide whether, in the
light of the needs of the organisation, the employee's job can be
held open
– Where an employee, charged with or convicted of a criminal
offence, refuses or is unable to cooperate with the employer's
disciplinary investigations and proceedings, this should not deter
an employer from taking action. The employee should be advised
in writing that unless further information is provided, a disciplinary
decision will be taken on the basis of the information available
– The employer does not have to await the outcome of the
prosecution before taking fair and reasonable action
Scenario 3 – Historic Convictions
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The MD comes into your office, and indicates that he has been made
aware, confidentially, that the Accounts Manager has been previously
convicted for a criminal offence. It is alleged that this may have been
for fraud or theft, but has no further information.
The Accounts Manager has been employed for more than five years
and has an unblemished record with the company. There is nothing in
his personal file that makes any reference to such a conviction.
You raise the matter with the Accounts Manager: – he confirms that he was found guilty of theft approximately 9 years ago.
– It occurred whilst he was a student and working in a local restaurant as a
waiter.
– He confirmed that he had been dismissed from his role at the restaurant
and that he had also been prosecuted for theft.
– He confirmed that he was found guilty and was subsequently fined, and
was warned that a more serious penalty would be applied should he repeat
the offence.
– He is still very embarrassed about the whole affair, and has never disclosed
this conviction to any of his previous employers.
Scenario 3 Questions?
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Is there anything to prevent an employer asking a job applicant, an
employee, worker or volunteer about their criminal record?
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Can an employer discipline for failure to disclose previous convictions?
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Does there become a time when you can’t take account of previous
convictions?
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Given the link between the offence (theft) and his role (Account
Manager) is there grounds to discipline or dismiss the individual in this
scenario?
When does a conviction become spent?
Sentence
Rehabilitation period for people
aged 18 or over when convicted
Absolute discharge (this means that
an offence was committed but no
penalty was imposed)
6 months
Fines, compensation, probation (now 5 years
called community rehabilitation
orders), community service (now
called community punishment
orders), combination (now called
community punishment and
rehabilitation orders), action plans,
curfews, drug treatment and testing,
reparation orders
Detention centres (now abolished)
3 years
Borstal (now abolished)
7 years
Prison sentence of 6 months or less
7 years
Prison sentence of 6 months to 2.5
years
10 years
Prison sentence of more than 2.5
years
Never becomes spent
Scenario 3 other considerations
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Disclosure Scotland provides a list of unspent convictions as a part of their
basic disclosure.
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Data Protection – take care to ensure that only information relevant to the
applicant’s suitability for the job is passed on to the decision-makers.
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In this scenario the conviction is a spent conviction, so cannot be referred to
Criminal Convictions Summary
Final points to always consider: • Is the conviction/charge relevant to the position in question?
• The seriousness of the charge/offence.
• The length of time since the offence was committed.
• Whether there is a pattern of offending or other relevant matters.
• The actual effect in the business
• Whether the employee's circumstances have changed since the
offending behaviour.
• The circumstances surrounding the offence and the explanation
offered by the individual involved.
• The terms of the contract/policies and whether the employee could
have reasonably expected to lose his/her job.
And finally.....
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Edmund Nuttall Ltd v Butterfield
Q&A?