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 • 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. • 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? • What is the employee’s role in the Company? – – • What are the job requirements of the role? – • Did he report his absence? Is there anything else to suggest a drinking problem affecting work? – • • • • Is driving a key job requirement? When he was attending court, what reason did he give at the time for his absence? – • 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? • • • • • • • 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 • Moore v C and A Modes • Norfolk County Council v Bernard • Tabor v Mid Glamorgan County Council Removal of car allowance? – depends on contractual terms Reputational Damage • Taylor v Somerfield Stores Ltd • Myers v Metropolitan Police – reputational damage can include internal reputational damage • 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:– – – – – – 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? • Risks aside from Unfair Dismissal claim? – – – – • 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 – 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 • 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 • 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 • Is there anything you need to do immediately? Scenario 2 – Update 2 • 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. • 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? • • • • • • • • 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? • 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. • 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 • 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. • Depending on the severity of the criminal charges it may affect matters – Kearney v Royal Mail Group Ltd • 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? • • 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 • • • 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? • Is there anything to prevent an employer asking a job applicant, an employee, worker or volunteer about their criminal record? • Can an employer discipline for failure to disclose previous convictions? • Does there become a time when you can’t take account of previous convictions? • 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 • Disclosure Scotland provides a list of unspent convictions as a part of their basic disclosure. • 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. • 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..... • Edmund Nuttall Ltd v Butterfield Q&A?