Police investigations of an employee's conduct outside of work - the employer's options

Employers who discover that one of their employees is alleged to have committed a criminal offence outside of the workplace can find themselves in a very difficult position as to what course of disciplinary action, if any, they should take.

There are two possible courses of action that are open to employers. Much will depend on the nature and severity of the allegation faced by the employee but the first step should always be for an employer to assess whether the matter actually has any bearing on the employee’s employment or if it might affect their relationship with colleagues or customers. Therefore, crucial to the employer’s assessment will be the nature of the potential offence, the nature of the employment and what the company’s disciplinary rules say.

If the criminal allegation is serious and has a bearing on his employment, the employer will need to hold a disciplinary meeting with the employee in order to give him an opportunity to dispute the evidence and put forward his side of the case.

If the allegation is of a particularly serious nature, an employer could be entitled to rely upon the information provided by the police in order to reach a decision on what action, if any, to take. The crucial test remains; whether the employer had a reasonable belief in the employee’s guilt, based on a reasonable investigation by the employer and that level of investigation was one which was within the “band of reasonable responses”. It is recommended that the employer carry out their own investigation to the best of their ability, which might be followed by a disciplinary hearing, depending on the circumstances.

The advice to employers remains the same: they should try their best to carry out a full investigation and be prompt in carrying out any necessary disciplinary proceedings.

Employers should be aware that if they decide to dismiss an employee because of a criminal allegation or investigation, the employment tribunal should be concerned only with whether the employer had acted fairly and reasonably by dismissing the employee given all the circumstances at the time of the dismissal, and not whether the employee is guilty of the criminal offence.