Following a recent blog from our Crime Team explaining what happens when you are under criminal investigation and from the Employment and Financial Crime & Regulatory teams explaining whether you have to tell your employer about such an investigation, this blog explores whether you will lose your job because you are under police investigation.
As explained in the previous blog, a police investigation, criminal charge or even a conviction related to things done outside work will not necessarily justify disciplinary action or dismissal, particularly if it is unrelated to suitability for the job or your relationship with your colleagues, your employer or other people you deal with as part of your job.
The process may depend on whether the investigation is connected to your activities at work. If so, it is common that your employer will already have investigated the misconduct and may have been the party who contacted the police. An employer can continue to conduct their own investigation and disciplinary hearing in the normal way whilst the investigation is ongoing however they must act fairly and reasonably.
As an employee, you should have the opportunity to respond during your employer’s investigation, and it may be that you are advised by your criminal solicitor to refrain from answering some questions which may mean that the internal investigation of your employer cannot reasonably proceed at that stage.
However, it is not uncommon for an employer to push on with their own disciplinary process whilst the criminal investigation is still ongoing but your employer is required to conduct the internal investigation and/or come to a decision having conducted a reasonable investigation. If the investigation is connected to your work activities the police may also need to access your workplace records/systems and employers should generally cooperate with such a request.
If the criminal investigation is not connected to your activities at work, the position is slightly more complicated. It may well be that some criminal investigations have no connection at all with your employment, however some allegations may have an impact on your job (e.g. if you work in the financial regulated sector or with children and/or vulnerable individuals) and so an employer may be obliged to investigate further. Having said this, an employer should not suspend you as a knee-jerk response. Instead, an employer should take reasonable steps to consider whether the allegation will impact the employment relationship. This could include a risk to other employees, clients or to the reputation of the business.
If you are subject to a police investigation, your employer will also consider whether they should take any disciplinary action against you in light of such investigation. Again, this should not be a knee jerk response and the Acas Code of Practice for Disciplinary and Grievance Procedures itself states “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”. As explained above, if an employer initiates such a process then they are required to conduct this fairly and to provide you with a fair opportunity to respond to any allegations.
In some cases, an employee’s bail conditions may make any continued employment impossible (e.g. if you are prohibited from certain locations and/or contacting colleagues or clients). It is important to note that even if you are convicted of an offence, this does not automatically give your employer a right to dismiss you as they are still required to consider the above employment relationship. If the outcome of such investigation is that the case is dropped or you are acquitted, this does not necessarily mean that your employer cannot dismiss you. Again, your employer is still able to carefully consider any potential implications of such an investigation as long as they follow a fair process and provide you with the opportunity to fairly respond.
If you are subject to a criminal investigation and are worried about any potential implications on your employment then please do not hesitate to contact us on 0808 252 5231 for advice. Our Employment and Financial Crime & Regulatory teams are well placed to advise you and are experienced in working together to achieve the best possible outcomes for our clients.