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Ben Jones
Ben Jones, UK Lawyer
Category: Employment Law
Satisfied Customers: 48791
Experience:  Qualified Employment Solicitor - Please start your question with 'For Ben Jones'
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I have been working at my company for 4 years now. I was

Customer Question

I have been working at my company for 4 years now. I was arrested on suspicion of drug crimes in January of this year. The case was withdrawn around a month ago until further notice. On the advice of my solicitor I did not inform my employer of these charges. My employer has somehow been made aware of the situation I was in and has now suspended me pending investigation. From my experiences with the company this will most likely end with me being dismissed. They are stating that I have broken 2 pieces of company policy laid out in the employee handbook. These are that I was engaged in criminal activity which could damage the company's reputation and that I was being charged with such crimes and did not report the matter to my line manager. If this does end with dismissal could it be considered unfair given that the charges have now been withdrawn and I had never been made aware of the fact that I must report the court proceedings to my line manager. I also believe that this would be unfair as it is non specific about what sort of court proceedings or police investigation must be reported to your line manager and believe therefore any other employees who did not report e.g. speeding tickets would also need to be dismissed.
Submitted: 1 year ago.
Category: Employment Law
Expert:  Ben Jones replied 1 year ago.

Hello, my name is***** am a qualified lawyer and it is my pleasure to assist you with your question today.

Expert:  Ben Jones replied 1 year ago.

Is it possible to let me see a copy of the handbook or could you provide details of the actual policies related to this?

Customer: replied 1 year ago.
I have attached a scan of the handbook section relating to criminal offences.
Expert:  Ben Jones replied 1 year ago.

OK, thank you for the attachment. I will review the relevant information and laws and will get back to you at the earliest opportunity. There is no need to wait here as you will receive an email when I have responded. Also, please do not responded to this message as it will just push your questions to the back of the queue and you may experience unnecessary delays. Thank you.

Expert:  Ben Jones replied 1 year ago.

Many thanks for your patience. Whilst the charges have now been withdrawn that does not remove your potential obligation to have informed them at the start of the proceedings because there was a specific clause stating that you should have advised them if it is likely that this would lead to criminal proceedings being brought against you. So it would really depend on whether you were just arrested or if you were actually charged. If you were never charged then you can argue that you are innocent until proven guilty and the lack of formal charge means that you were never facing formal criminal proceedings. Comparing this to driving offences is often like comparing apples and pears because many driving offences, specifically those dealt with under a fixed penalty notice are not treated as criminal offences.

As far as the law stands generally, there is no specific rule that someone must be dismissed because they are being investigated for, charged with or have been convicted of a criminal offence. As the ACAS Code 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".

This is your basic legal position. I have more detailed advice for you in terms of a summary of factors which would be considered when looking at the fairness of such dismissals, which I wish to discuss so please take a second to leave a positive rating for the service so far (by selecting 3, 4 or 5 stars) and I can continue with that and answer any further questions you may have. Don’t worry, there is no extra cost and leaving a rating will not close the question and we can continue this discussion. Thank you

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Customer: replied 1 year ago.
Charges were brought at the time but have now been dropped. There is little doubt that court proceedings will be brought against me again in the future but at the moment of suspension by my employer there are no charges against me. I agree that I am in breach of that clause, I just question how legal writing such a clause into the handbook is. The handbook is given to all employees but there is no signed documentation to show that any staff have actually read its full contents. On a slightly seperate but related note there are other things written into this handbook which essentially state that if the store is too busy for you to take a break regardless of length of shift then you can not have a break which i believe is just one example of the handbook writing clauses that can not be enforced legally.
Expert:  Ben Jones replied 1 year ago.

Thank you. When an employer is considering disciplining an employee who is subject to a criminal investigation, charge or prosecution, the following points from the ACAS Guide should be considered:

· The employer should consider whether the conduct is sufficiently serious to warrant instituting the disciplinary procedure. Off-duty conduct which has no bearing on employment is unlikely to justify disciplinary action.

· The employer does not have to await the outcome of the prosecution before taking fair and reasonable action

Such clauses are not that uncommon and can be perfectly legal – after all the employer has a right to protect their reputation and ensure that they employ trustworthy people and there are times when someone subject to criminal proceedings may adversely affect these, depending on what they are being charged with. So the employer can ask employees to disclose such information, that is in no way illegal or unreasonable. I would say that at this stage dismissal may be a bit harsh but if the proceedings restart then depending on the outcome and the charges the employer could still consider further action

Customer: replied 1 year ago.
If they dismissed me now considering they would only be able to point to the fact I didn't tell them but was never aware I needed to tell them would I have much of a case to bring to a Tribunal or would it be a waste of my time?
Expert:  Ben Jones replied 1 year ago.

I would say try the ACAS conciliation service first - it is mandatory and it is free. If that fails, then you can consider formal tribunal action but it will cost you over £1,000 to make the claim - I cannot advise you whether t proceed or not or hat your chances are as I have very little detail and we are just a Q&A service so whilst I can discuss the law and your options, I cannot give prospects of success as I am not allowed to

Customer: replied 1 year ago.
I understand. Thank you for your help.
Customer: replied 1 year ago.
The ACAS Conciliation service operates in Northern Ireland also?
Expert:  Ben Jones replied 1 year ago.

It is slightly different in a sense that it is not ACAS but the Labour Relations Agency that deals with such disputes but they do have the same process:

https://www.lra.org.uk/conciliation-arbitration-services/pre-claim-conciliation