Steps to Take When an Employee is Arrested

Q: How should I respond if an employee gets arrested?

A: Initially, refrain from making any hasty decisions like terminating the employee; an arrest doesn’t equate to guilt. Prior to taking any measures, it’s crucial to discuss the situation with the employee to understand the details.

Dismissal without conducting a thorough investigation could lead to an unfair dismissal claim, particularly if the employee has been with your company for two years or more. With changes in the legal landscape, unfair dismissal protections might soon extend to all employees, regardless of their tenure.

In cases where your employee is in custody, contacting them might be challenging initially. Note that there is no obligation to pay employees for the period they miss due to police detention.

Recent incidents showcase the divide between the law and public sentiment. For instance, the BBC faced backlash for not dismissing news presenter Huw Edwards after his arrest in November.

A tribunal case, J Difolco v Care UK Community Partnerships Ltd, serves as a cautionary tale about firing employees suspected of crimes. A care assistant, accused of murder in October 2022, was fired due to potential reputational damage. However, upon her acquittal in March, she claimed unfair dismissal and won, as the employer hadn’t adequately assessed the impact on the company’s reputation.

While Edwards was only recently charged, sacking him prematurely could have led the BBC into costly legal issues and potential misuse of public funds.

Amidst recent unrest and violence in the UK, some arrested individuals have faced job loss due to employers being contacted via social media.

An employee’s involvement in riots can severely impact an organization, necessitating a careful approach by employers. Key considerations include the effects on team morale, client relationships, and the company’s public image.

The arrest of an employee for racially motivated violence is likely to create workplace tensions. Employers must manage not just the arrested employee but also navigate any resulting employee conflicts and support those affected by the events.

Nonetheless, dismissal for reputational reasons isn’t off the table. Employment law identifies five justifiable grounds for termination, including misconduct and other substantial reasons. The fairness of a dismissal is judged based on the process followed and the reasonableness of the employer’s decision.

If the employee’s crime renders them unfit for their role—such as a finance director involved in fraud or a delivery driver charged with DUI—dismissing them could be deemed fair, provided a proper procedure is observed.

Even if an employee is convicted and imprisoned, automatic dismissal isn’t guaranteed. Termination of employment requires following a fair process, irrespective of the employee’s incarceration.

Peter Done is the co-founder and managing director of Peninsula, a specialist in employment law, HR, and health and safety advice.