Dismissing Suspected Criminals – When Criminal Law and Employment Law Collides!
Introduction
Dismissing suspected criminals is tricky business. When faced with the dilemma of whether to dismiss an employee charged with a serious crime, the decision is far from straightforward and can be very complex. Take the case of Huw Edwards, for instance. The public backlash over his continued employment by the BBC, including a substantial salary and pay rise while under investigation, illustrates the tightrope employers must walk. The BBC’s actions, while frustrating to many, were likely influenced by the potential legal ramifications of an unfair dismissal claim—especially in a case where the charges might not lead to a conviction. They were also concerned about their duty of care towards an employee suffering from serious mental health issues.
My Personal Experience of Criminal Law and Employment Law Colliding
As an HR professional, I’ve encountered several cases where the boundaries between criminal and employment law collide, creating a minefield of potential pitfalls. One of the first cases I managed involved a mother and daughter who had worked in an organisation for years before it was discovered that their immigration documents were fraudulent. It was a real shame because they were excellent workers. Despite the severity of the offence, we had to follow due process on advice from our lawyers. We suspended them and conducted an investigation before holding a disciplinary hearing in their absence, even though they had already fled the area. Organisations can be fined up £60,000 per illegal worker (see GOV.UK).
In the care sector, I’ve dealt with numerous allegations of abuse. Often, when the police get involved, my investigations were paused, sometimes for months, to avoid interfering with their work. During this time, the accused employees were suspended on full pay—an understandably frustrating situation for any employer, yet a necessary one to ensure fairness and legal compliance.
Even in extreme cases, such as those involving murder charges, employment law provides certain protections. The recent tribunal ruling in the case of Jacqueline Difolco serves as a powerful reminder of this fact.
The Difolco Case: The Cautionary Tale of Jacqueline Difolco
Jacqueline Difolco, a care assistant, was charged with murder in October 2022, leading to widespread media coverage. Her employer, Care UK Community Partnerships, quickly dismissed her, citing potential reputational damage. However, Difolco challenged her dismissal, and the Edinburgh tribunal found that her employer had acted unfairly. The tribunal ruled that the company failed to discuss the potential risk of reputational damage with Difolco before making their decision. Crucially, this lack of proper procedure led to a ruling of unfair dismissal. Notably, Difolco was later acquitted of all charges.
This is another clear example of criminal law and employment law colliding.
Why Proper Investigation Matters
1. Fairness and Due Process:
No matter the severity of the charges, every employee is entitled to a fair and thorough investigation. In Difolco’s case, the employer’s failure to adequately explore the facts or consider alternatives to dismissal resulted in an unfair dismissal ruling. This oversight underscores the importance of due process in disciplinary actions.
2. Reputational Risk Requires Careful Consideration:
While concerns about reputational damage are valid, they must be weighed against the employee’s rights. The tribunal highlighted that even when reputational harm seems obvious, it still requires discussion with the employee. Ignoring this step can create a perception of post-hoc justification, undermining the legitimacy of the decision.
3. Legal and Financial Implications:
Failing to follow proper procedures can lead to costly legal consequences, as seen in the Difolco case. While the tribunal recognised the employer’s concerns, the lack of due process led to a finding of unfair dismissal. This not only resulted in expensive legal fees but also could have caused further reputational harm if the case had attracted more public attention.
Best Practices for Employers
- Conduct a Thorough Investigation: Before making any decisions, ensure all relevant facts are investigated. This includes engaging in dialogue with the employee to hear their side of the story.
- Consult Legal and HR Professionals: Navigating such cases requires expertise. Consulting with legal and HR professionals can ensure that your actions are legally sound and align with company policies.
- Consider Alternatives to Dismissal: Suspension or reassignment should be considered, especially when the criminal charges do not directly relate to the employee’s role or workplace conduct.
- Document Everything: Keeping detailed records of all discussions, investigations, and decisions is crucial. This documentation can be invaluable in defending the company’s actions if challenged.
Conclusion
The case of Jacqueline Difolco underscores the critical importance of adhering to proper investigative and disciplinary procedures, even when reputational risks are at stake. Employers must balance protecting their reputation with ensuring fairness in their treatment of employees. By following these best practices, organisations can avoid the pitfalls of hasty decisions and uphold the principles of justice in the workplace.
Had I been involved in the BBC’s handling of the Huw Edwards case, I might have recommended dismissal on the grounds of “some other substantial reason,” but only after ensuring that due process was meticulously followed. However, it’s worth remembering that only a small, informed group of people are privy to all the facts, and uninformed speculation can be a dangerous thing.
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