Guide on responding to criminal allegation
David has acted for a number of employers dealing with complaints about alleged actions by their employee which if proven would amount to criminal acts. He has also acted for a number of senior executives accused of acts by other employees which if proven would amount to criminal acts. In some cases the police were involved and in others the alleged conduct involved potential regulatory issues.
The first question is how to respond. Employers are quite rightly wary of doing anything which might prejudice an ongoing criminal investigation. Employers should consider the matter carefully and avoid making a knee jerk reaction. Some decide to suspend on full pay pending the outcome of the criminal proceedings. Other employers are keen to conduct their own investigation and make their own determination on the allegations made. Dismissing an employee based on a finding of fact around the allegation in the criminal proceedings could potentially prejudice the criminal proceedings and hence a safer route for employers can be to consider dismissal for another fair reason. So for example, where the allegation and arrest has been widely reported in the press this may entitle the employer (after following a proper process) to dismiss for bringing into disrepute – but advice should always be taken before doing so.
The route you take will depend on the nature and seriousness of the allegations made.
In terms of suspension generally, employers may be tempted to suspend the employee in question whilst deciding what to do next. Suspension can be a useful tool where an investigation is required and in circumstances where relationships have broken down or the employee poses a potential threat to the business or its employees.
However, employers must think carefully before opting to suspend as there is a danger that in doing so the employer might give the impression of having already made a judgment on the issue. If the employee does return to work, the suspension may well have harmed their reputation amongst colleagues and make them feel that their position is untenable.
Employers are subject to an implied term of trust and confidence towards their employees. In the context of suspension, this means that an employer must act reasonably. If suspension is not a reasonable course of action, it could be argued that doing so would represent a breach of the implied term of trust and confidence, thereby exposing the employer to a claim for breach of contract.
In determining whether suspension represents a breach of trust and confidence by the employer, courts and tribunals have considered whether suspension is a ‘neutral act’ which does not not imply guilt. The argument that has been put that where, on the facts, suspension is considered a neutral act, there can be no breach of trust or confidence.
The Court of Appeal considered this question in Mayor of Burgesses of the London Borough of Lambeth v Agoreyo, where a teacher was suspended following allegations of using unreasonable force against two children. In light of the allegations, Ms Agoreyo received a letter suspending her which stated, “suspension is a neutral action and is not a disciplinary sanction.”
The High Court had previously considered whether the suspension was indeed neutral, and found that it was not. It determined that the suspension was a knee-jerk reaction and constituted a repudiatory breach of contract.
On appeal, the Court of Appeal suggested that the question of whether suspension was a neutral act was not relevant to determining whether there was a breach of trust and confidence. It overturned the High Court decision and in doing so found that the school had reasonable and proper cause for suspending the teacher in order to investigate the allegations.
Ultimately, the important question for employers to ask themselves is whether suspension is reasonable and proper in all the circumstances i.e. not whether to do so would be a neutral act.
Although the Court of Appeal eventually found in favour of the employer, the case highlights the potential dangers of choosing to suspend an employee; such an act can cast doubt on the individual’s innocence, suggest that any future decision has already been determined and ultimately give rise to a claim that the employer is in repudiatory breach of contract.
Employers need therefore to consider:
ACAS guidance suggests several alternatives to suspension including:-
Suspension must not be used as a form of disciplinary action; it should be used to facilitate an investigation and not as a form of punishment. Suspension must therefore be handled sensitively to ensure that the employee and their colleagues understand this.
Further, an employer must have a right to suspend. An employment contract might expressly provide such a right. If there is no express right, the employer may still be able to suspend in reliance on an implied right to do so but advice should be taken before doing so.
If having taken advice you decide to suspend:-
If you require assistance in dealing with misconduct allegations or decision making around suspension please contact David Greenhalgh on 0203 603 2177.
This article/blog is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.