Criminal Offences in Employment
Jan 1, 2010
One of the most common questions we are asked by employers is how to deal with employees who they suspect of stealing from them; have been arrested by the police whilst not at work or have failed to tell the employer about previous convictions when asked at interview. As you would imagine the answer is not straightforward but the problems are not insurmountable.
In general terms, willful concealment of previous convictions when applying for a job may be a fair reason for dismissal provided the correct procedures in making that dismissal are followed.
The exception will be if the convictions are, what is referred to as ‘spent’ in which case the employee is not obliged to disclose the convictions and any dismissal may be unfair. A ‘spent’ conviction is defined by law and involves such factors as the length of sentence imposed and the time elapsed since the conviction.
Criminal offences committed outside employment should not be treated as an automatic reason for dismissal regardless of whether there is any relevance to the duties of the employee and workers who find themselves incarcerated and as a result are absent from work, or are charged with a criminal offence should not be automatically fired.
Problems often arise when an employer only suspects an employee to have committed a criminal offence against the employer but is unable to prove the offence. Where the crime arises within employment the obvious one (though not exclusively) being theft of the employers property, the employer does not have to prove the employees guilt but may dismiss an employee if he has a genuine belief in the employee’s guilt which is based upon reasonable grounds following a thorough investigation.
The most important factors for an employer to consider is whether or not an investigation has been carried out; have proper procedures been followed allowing the employee a fair hearing, the right to be accompanied and the right of appeal; and was the employers belief that the employee committed the offence genuine.
This is a general overview and expert legal advice should be taken when dealing with matters of this nature.
