Can I sack an employee who is facing trial for theft?

Q: My employee is awaiting trial for theft. I am concerned about the reputational damage this will have on my business. Can I dismiss the employee?

A: Whether the employee can be dismissed will depend upon the extent of the reputational risk to your business when set against the interests of your employee and your obligations towards him or her.

But it is nonetheless possible to dismiss an employee even if they have only been charged with an offence (rather than being convicted). Each case will turn on its individual facts and there is a process an employer should follow before taking such a decision.

First, you should investigate to find out as much as possible about the nature of the charge(s) against your employee and the surrounding circumstances. That may be challenging, given that the police are involved, but you should nonetheless do what you can in this respect.

If you fear that reputational damage may be caused to your business if they remain an employee, you should think about what evidence you can point to in order to establish that reputational risk, and how that might be ameliorated if the employee was, for example, asked to step aside or carry out other duties while awaiting the trial and its outcome.

You may want to consider suspension in these circumstances, but if you do this should not be a “knee jerk” reaction. Bearing in mind the possible effect on the employee’s job and career if they are suspended, this needs to be considered carefully.

Assuming there is no alternative that works for you besides dismissal, you should tread carefully, not least because if the employee has been continuously employed for more than two years they may take you to employment tribunal claiming unfair dismissal if sacked.

Check your contract of employment and, if there is one, your company disciplinary policy. These may set out the process to be followed if you are to consider termination. Check if it says the policy is (or is not) contractually binding.

If there are no such documents (and even if there are), download and follow the Acas code and guidance on disciplinary procedures. Not to do so risks an additional penalty if the employee brings a successful claim to the tribunal, but in any event if you have consulted and followed the Acas code that will very much stand to your credit if a case is brought against you.

In terms of procedure, make sure the employee is given the chance to give their side of the story after they have been served with the evidence you have about the effect the charge will have on the reputation of your business if the employee is allowed to remain on your books (rather than being put on leave or suspended from work).

If you do dismiss the employee, make sure you know on what statutory ground you are doing so. This will usually be for misconduct or some other substantial reason. Make sure the employee is made aware that they have a right of appeal.

There is no way of dismissing an employee in these circumstances without running a risk of tribunal proceedings if the employee chooses to mount a challenge. But in appropriate circumstances and with appropriate precautions, that risk can be kept to a minimum. It may also be in the best interests of your business to take the decision to dismiss, notwithstanding the potential risk of a claim.

Richard Fox is an employment partner at Keystone Law