Dismissal In Criminal Cases – Can You Have The Courage Of Your Employee’s Convictions?
Back in January 2015 we posted a piece as a counter-argument to the public pillorying received by professional footballer Ched Evans in daring to challenge his 2012 rape conviction. On his release from prison in 2014, previous employer Sheffield United FC had said that he could resume training with it, but then instantly regretted it. Club sponsors severed links, boycotts were threatened, famous names withdrew their patronage and the Twitternet foamed over with spittle-flecked abuse. The Blades pulled the training offer immediately. Other clubs would not go near him and the Ministry of Justice even blocked his playing in Malta. Mr Evans’ career was effectively destroyed at that time, unless you have a particularly rose-tinted view of his current team, Chesterfield (average home gate: 5,675).
And yet, as it turns out, he was innocent. Not of immoral or amoral behaviour, which he freely admitted, but of the criminal offence of rape. This is the offence which put him inside for over two years, made him a new hate-figure for the Daily Mail (not that it is short of those, particularly) and ended his top-rank and international career. If you were Sheffield United, which let Evans go immediately after his conviction, would you now feel a twinge of conscience? Less pointedly, if as employer you dismiss an employee for a criminal thing he turns out not to have done, does that expose you legally?
Yes and no. The question is partly whether you reasonably believe after a proper investigation that he did it. In an extreme case like this one, it may also depend not on your view of his guilt, but on the public perception of it, even though that Court of Public Opinion is so easily confused between conduct which is criminal and that which is just morally reprehensible, as here. A highly commercial organisation like a professional football club could potentially justify (legally at least) letting go a player whose presence generated huge public ill-will, damaging sponsor losses, etc., even if it did not itself believe him guilty of a criminal offence. NB, that dismissal would be for “some other substantial reason” and hence with notice, and not for serious misconduct and hence without it.
As to an investigation, this is never easy where a criminal prosecution is underway. The police will not generally tell you much about the evidence they have, and the employee may well be advised to say little or nothing to you for fear of incriminating himself. A decision to prosecute says that the Crown Prosecution Service thinks it has a better than evens chance of a conviction, but just for Daily Express readers and Twittersphere critics, being charged and being actually guilty are not the same thing, okay? However, a conviction (if you have waited that long) is a conclusion of guilt against a far higher standard of proof (beyond all reasonable doubt) than faced by the employer for a fair dismissal (on a balance of probabilities). Reliance on a conviction to justify dismissal will therefore almost always be okay for the employer (assuming some meaningful connection between it and the job), even if the conviction is later overturned on appeal. We can ignore cases like McCarrick -v- British Gas Plc back in 1991 where the employee said that his admission of theft from his employer and consequent conviction was not because he had actually done it, but because he had been advised by his lawyer that this would lead to a shorter sentence than his denying it and being convicted anyway. Nothing like having Counsel confident in your case, I say.
On the other hand, if you do not do what you can to investigate and so do not form a reasoned and independent view of your employee’s guilt, and the CPS then decides not to prosecute or the police not to charge or the jury not to convict, you will very probably be guilty of an unfair dismissal. A knee-jerk decision to end someone’s employment on the basis of a police enquiry or charge alone will almost inevitably be unlawful. On the other hand, if you have investigated properly and dismissed on the back of your findings, then a subsequent dropping of charges or acquittal will not prejudice the legal fairness of your decision.