Employment & Pensions Blog: Criminal Proceedings and Unfair Dismissal

The criminal proceedings against former BBC newsreader, Huw Edwards, have shone a light on the complex interplay between criminal proceedings and an employer’s ability to take action against an employee. This has resulted in many being highly critical of the BBC’s failure to terminate Huw’s employment sooner.

Criminal Proceedings and Dismissal 

Finding out that an employee is facing a criminal conviction may seem reason enough to dismiss them, however, regardless of the severity of the criminal proceedings, employers must still follow a fair process to mitigate the risk of a claim for unfair dismissal from an employees who has the requisite period of 2 years’ service. 

The ACAS guidance provides that criminal proceedings alone are not normally sufficient for employers to instigate disciplinary action. It states that employers must, in the first instance, consider the effect of the charge or conviction on the employee's suitability to do their job, their relationship with their employer and the impact on work colleagues and customers. Therefore, if an employer discovers that an employee is facing criminal proceedings they should consider: 

• If the conduct is sufficiently serious to warrant instigating its disciplinary procedure and whether the charge/conviction impacts their employment; 
• If they have to await the outcome of any prosecution before taking fair and reasonable action; 
• If an employee is held in custody, what impact this has on the employer and whether the job can be kept open for them; 
• If alternative work is appropriate and reasonable; and
• If it impacts their employment to the extent that they can no longer carry out their role. 

If the criminal proceedings do not impact the company and/or the employee’s suitability to continue in their role, it is unlikely that their dismissal would be fair. 

Jacqueline Difolco v Care UK Community Partnerships

In the recent case of Jacqueline Difolco (JD), JD brought a claim against her employer, Care UK Community Partnerships (Care UK) for unfair dismissal after she was dismissed for failing to disclose that she was charged with murder. JD was charged and held in custody for 30 hours and during this time her daughter informed Care UK that she was off sick with Covid. After JD appeared in court and her name was published in a local newspaper, her daughter informed Care UK that she had been charged with murder.

Care UK suspended JD on full pay pending an investigation. JD was then invited to a disciplinary meeting which found that she was named in a newspaper which, in Care UK’s view, could bring them into disrepute. Further, Care UK found that because she did not inform them of her arrest there was a breakdown in the relationship of trust and confidence between them. Her employment was then terminated with immediate effect for gross misconduct. JD appealed the decision and Care UK found that, although she had not been proven guilty of the offence, this did not mitigate the risk of reputational damage, so they upheld the decision to dismiss her. 

The Employment Tribunal found that: a) the investigation and fact-finding report made no assessment of the risk of reputational damage; b) it was not discussed in her disciplinary or appeal meeting; and c) alternatives to dismissal were not considered. Consequently the dismissal was found to be unfair. The Employment Tribunal held that even when reputational risk is reasonably obvious, employers must still explore the matter and consider alternatives to dismissal. Therefore, dismissing JD without considering these matters fell outside the range of reasonable responses available to a reasonable employer. 

Comment 

This case is a reminder that even when dismissing an employee for gross misconduct seems like the only reasonable option, particularly in cases involving criminal proceedings, employers must still apply a fair process and consider alternatives to dismissal before determining whether dismissal is appropriate. It would be wise for employers to assess the impact of the charge/conviction on the employment relationship and ensure that no unsubstantiated assertions of reputational damage are made. Employers are also advised to deter from suspending employees as a knee jerk reaction to criminal proceedings. Finally, employers are also reminded that conduct is only one of the 5 potentially fair reason for dismissal. Dismissal for some other substantial reason may also be an option worth exploring in the alternative. 

If you require any further assistance or support, please contact a member of the Employment Team.