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Criminal Offences
Tuesday, October 4th, 2011
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Although we may be able to handle fluently a workplace disciplinary issue, an incident of criminal behaviour can leave us floundering, especially if the police become involved. Can we still discipline the employee? What if we dismiss but a court subsequently finds him not guilty? What if he is in custody? And do we have to wait until the police have completed their enquiries or the matter has been taken to court? In fact the situation, although out of the ordinary, can be dealt with thoroughly, quite easily and certainly safely.
You need to deal promptly with any incident occurring at work. If it involves violence, your first duty is to secure the health and safety of everyone. One way or another get the offending employee off the site, then look after anyone who has been injured or traumatised by giving first aid, calling an ambulance or counselling as appropriate. Consider whether the police need to be informed. Either way, contact the offending employee and tell him that he is suspended on normal pay until you call him back for a disciplinary hearing. You may of course need to interview him in the meantime as part of your investigation, but take care not to assume guilt until you have completed your investigation and concluded a disciplinary hearing. If the offence is one of theft and you feel it necessary to call the police, do your best to keep the employee on site until they arrive. However do not use force or lock the employee in a room otherwise, regardless what subsequently happens to him, you may be found guilty of assault or wrongful arrest. You certainly may ask the employee to empty his pockets and indeed be searched, but you must first have his permission to do so. If he declines or leaves the site, a court will be entitled to draw its own inference about why he did so.
If the offence occurs away from work, you do not have these immediate difficulties but nevertheless need to consider the relevance of the alleged crime to the workplace before taking any action. If, for example, one of your draughtsmen were found to have embezzled church funds, this would hardly impact on his employment with you. Courts would not accept readily an argument that his action would tarnish the reputation of the company. However if the same offence were committed by your cashier, then you would have every right to consider removing him from that job. You would need to carry out a disciplinary interview in the normal way and, if you were satisfied that the offence took place, try to redeploy him into a job where he had little opportunity to be dishonest or, failing that, dismiss him.
Wherever the alleged offence may have been committed and whatever the police may be doing, you may proceed with your disciplinary process right away, the first step of course being to carry out an appropriate and thorough investigation. You will have some difficulty if the employee is held in custody, but only in the sense that you will have to slow things down. If the period in custody is likely to be short, then you can wait until the employee returns to work before you begin your disciplinary process. However, in serious cases he may be held on remand for several weeks, in which case you may conduct your disciplinary process in his absence. Do this ideally through the employee’s solicitor but, if the solicitor refuses to play ball or if there is any other problem, conduct matters through a close family member. Gather together all the evidence that you have including investigation report, statements of witnesses, recorded data and so on, and prepare it to send to the employee. Explain that you are likely to be holding a disciplinary hearing in his absence and that he must therefore read this evidence and send you a considered response. Ask if he needs to ask witnesses any questions, if he wishes to have statements taken from witnesses of his own choosing, or if he needs anything to be investigated on his behalf, say by a work colleague. If he does, then carry out his wishes. Indicate also that he should have a companion present at the interview although he himself will not be there. This companion can ensure that the interview is conducted properly and may indeed wish to make representations on behalf of the absent employee. Give a reasonable length of time for the employee to prepare and submit his response to the complaint. Delays may be caused by access to the person though, once he receives the papers, he is likely to have plenty of time to study them and sort out a defence.
At the appointed time hold a disciplinary hearing in the normal way. Read out the complaint and the supporting evidence and then read out whatever the employee has submitted. As he is absent, ask the companion if he or she wishes to say anything. If necessary, adjourn the meeting to follow up any need for further investigation. When all the available evidence and arguments have been tabled, adjourn the meeting, give yourself time to clear your mind, and then come back to the issue. Read all the evidence and decide, on the balance of probability, whether or not a sanction is called for. If so, advise the employee, but explain the right of appeal. If an appeal is made, again conduct it in the normal way having first asked the employee what is the basis of his appeal.
Being in custody is not in itself an adequate reason for dismissal. You should look at the likely length of custody, taking into account remission for good conduct and time spent on remand, and consider whether you would dismiss someone who was absent through sickness for that length of time and act accordingly. As courts see it, they award punishment while you help rehabilitate the person by taking him back into employment. The employee may choose at some stage of the process to resign. Nevertheless, if there is a case for him to answer, you should continue with the disciplinary procedure until he does in fact leave your employment. Subsequently, if asked why he left and you choose to respond, you should not hide the fact that he was in a disciplinary process but left before it was completed.
The police are unlikely to help you with your disciplinary process as their task is quite different and in any case they will have confidences to maintain. Also, when they take the case to court, they will need to prove guilt beyond all reasonable doubt whereas you need satisfy the person’s guilt only on the balance of probability, which is not so demanding. Another difference is that criminal courts consider the impact of the person’s actions on society whereas you consider his impact on your organisation. If you follow your disciplinary procedure as best you can in the circumstances and as a result decide to dismiss the employee then, even if a criminal court subsequently finds him not guilty, your decision will stand and nobody can overturn it.
Finally, if the incident was not connected to work, then as a good employer you should ensure that the employee has proper legal representation. Also you should take steps to ensure that his family is adequately provided for.
