The law

Employees with at least 2 years’ service have the right not to be unfairly dismissed. Therefore unless an employer has a fair reason to dismiss and follows a fair process, they will run the risk of an unfair dismissal claim.

Policies and procedures

Generally you do not have the right to take disciplinary action for your employee’s actions in their own time. To take action, you should consider if any internal policies have been breached by your employee. In the absence of a breach, consider if the criminal behaviour affects their ability to perform their role. In some cases, it may do, e.g. if the employee has been charged or convicted of fraud and they work in finance. Some occupations also have regulatory requirements that may have been breached by the charge/conviction which could justify taking action.

Reputational damage

Other employees may raise concerns about continuing to work with the individual or you may worry about the reputational damage to your business as a consequence of their actions. Subject to evidence, this could potentially lead to a dismissal for “some other substantial reason” but a fair process must be followed.

Dismissal

You should not assume just because your employee has been imprisoned that a dismissal is justified. The length of the sentence and the impact on the business should be taken into account and a fair process followed. Where the employee has less than 2 years’ service, under the current rules (which may be changed under the new government) a more streamlined process can be followed.

How we can help

Our employment advisers are here to provide you with advice before beginning any process, please contact the Helpline on 0370 840 0234. There is a template Disciplinary Policy available in our Members Area which includes an optional section to address conduct outside the workplace.