Employment Lawyers Can Answer Your Employment Law Questions
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Is it possible to let me see a copy of the handbook or could you provide details of the actual policies related to this?
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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 Whilst the charges have now been withdrawn that does not remove your potential obligation to have informed them at the start of the proceedings because there was a specific clause stating that you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
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
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
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: