In light of the Adam Johnson verdict yesterday, employment lawyers Doyle Clayton is warning employers that you cannot automatically sack employees because they have been charged with a criminal offence.

Dan Begbie-Clench, a partner at workplace lawyers Doyle Clayton said: Where a criminal offence is committed outside of work, in many cases an employer will not know that the employee has been charged or even that they have been convicted. Regardless of the alleged or actual crime, an employer considering dismissal must still comply with basic principles of fairness such as giving the employee the opportunity to state their case and taking into account any mitigating circumstances.

In some cases, it may be possible to dismiss an employee on the basis of the charge alone.  This will usually only be the case if the offence is a very serious one.  For example, the dismissal of an employee because they had been charged with murder was ruled to be fair. A charge of rape or child sex offences may be regarded in the same way.  

If the employee is subsequently acquitted of the offence this does not mean that the dismissal will necessarily be unfair.   This is since the employer is not held to an absolute standard of proof when making its decision to terminate; the employer is only required to act reasonably in the circumstances. Generally, employees are under no obligation to tell their employer that they have been charged with or convicted of a criminal offence, unless they are specifically asked or if the employment contract requires them to disclose such matters.  Even then employees have no obligation to disclose spent convictions, unless they work in certain professions or regulated occupations (such as financial services) or with children or vulnerable adults.

Criminal offences outside work: what can employers do?
Footballer Adam Johnson was sacked by his club Sunderland last month after he pleaded guilty to two charges of grooming and kissing a girl of 15.  He denied two further more serious charges of sexual activity with a girl of 15.  He was cleared on one count, but has been found guilty on the other (sexual touching).  The judge has warned that a custodial sentence is inevitable.  What should employers do if an employee faces a serious criminal charge in respect of conduct outside work?

When can you sack an employee who has been charged with/convicted of a criminal offence?
There is no general right to sack an employee because they have been charged with or convicted of a criminal offence.  Instead, employers must consider the effect of the charge or conviction on the employee’s suitability to do the job and their relationship with their employer, work colleagues and customers.  Relevant matters include the nature of the offence, the nature of the employee’s job, the extent to which it involves contact with other employees or the public and the employee’s seniority or rank.

If there is no adverse effect on their suitability, the charge or conviction should have no bearing on the employee’s continued employment.  However, if the employee is unavailable for work due to being in custody, the employer will need to consider whether the employee’s job can be kept open in the light of the business’s needs.

Certain offences will impact on an employee’s suitability for their job, and others may impact on workplace or business relationships.  For example, an employer is entitled to dismiss a shop worker who is convicted of theft because honesty is an essential pre-requisite for working in a shop and the employee can no longer be trusted.  The same would apply to a teacher convicted of child pornography offences. Sexual and violent offences are also most likely to cause difficulties with relationships with colleagues and customers/clients.  They are likely to find it unacceptable to have to work with or do business with someone who has committed such offences. 

Damage to reputation may also be relevant.  Disassociating itself from an employee’s bad behaviour might be especially important for an employer with a mixed customer-base and which aims to cultivate a family-friendly image.  However, employers generally cannot make unsubstantiated assertions that their reputation has been damaged by the fact that an employee has been charged with or convicted an offence.   If they want to dismiss an employee on this basis, they would need to point to examples of customers withdrawing contracts or refusing to allow them to tender because of the charge or conviction. That said, in the case of serious charges a risk of reputational damage (as opposed to actual damage) may be sufficient. In Sunderland’s case, it is likely that the club dismissed Johnson to protect its standing with fans as a family club, its general worldwide image and because his teammates might object to playing alongside him.   

Can you sack before the employee has been found guilty?
In some cases, it may be possible to dismiss an employee on the basis of the charge alone.  This will usually only be the case if the offence is a very serious one.  For example, the dismissal of an employee because they had been charged with murder was ruled to be fair.  A charge of rape or child sex offences may be regarded in the same way.   If the employee is subsequently acquitted of the offence this does not mean that the dismissal will necessarily be unfair.   This is since the employer is not held to an absolute standard of proof when making its decision to terminate; the employer is only required to act reasonably in the circumstances.