An American football team, the San Francisco 49ers, has
dismissed its player Bruce Miller following his arrest on suspicion
of assault after an altercation about a hotel room. Although both
an American and sports related story, it poses an interesting
question to employers in the UK ... can you dismiss an employee who
faces a criminal conviction?
You would first need to consider whether this behaviour was
misconduct. There is no outright rule that an employer should
dismiss an employee who it is alleged has committed or is found to
have committed a criminal offence. The Acas Code of Practice states
at paragraph 31 that "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."
Some points an employer may want to consider include:
the seriousness of the offence;
whether it can leave the job open
while the employee cannot work;
whether the conviction affects the
employee's job (e.g. loss of driving licence); and
the employee's refusal to
cooperate with the employer's disciplinary investigations.
Employers should also consider what its employee handbook says
on this topic. For example, a typical clause in the handbook may
state "a criminal investigation, charge or conviction relating
to conduct outside work may be treated as a disciplinary matter if
we consider that it is relevant to your employment."
Therefore, the employer will need to review and consider whether an
investigation or suspension would be necessary. Responding to an
employee's criminal conviction remains a grey area on which
advice should be sought.
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The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The Court of Appeal has held that where a contract of employment lacks a provision for when notice of termination takes effect, it is effective from when the employee personally takes delivery of the letter containing notice.
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