An employee has recently been charged with a criminal offence arising from an incident which happened outside of the workplace. We are deeply concerned about the reputational damage for the company and want to know if we have sufficient grounds to dismiss this employee.  How do we handle it?

As is the case with most employment law related matters, there is no “one size fits all” approach when it comes to dealing with an employee charged with a criminal offence. Each case needs to be determined on its own merits and in some situations, it may be fair and reasonable to terminate the employment.

Generally there must be some link between the criminal charge and the employment relationship or some evidence of reputational damage to the employer before an employer can invoke its disciplinary process in relation to an employee charged with committing a crime outside of their employment.

Employers should follow the disciplinary process as detailed in the employee handbook and ensure that a full and fair procedure is followed. Caution should be exercised when it comes to suspending the employee and employers must have regard to whether there is a contractual right to suspend the employee and whether suspension is appropriate in the circumstances having regard to alternative measures.

Even in circumstances where an employer has a basis to invoke its own internal procedures, it can be difficult to carry out and complete a proper process as the employee may refuse or be reluctant to engage in the process for fear of prejudicing the criminal case.

If an employee is convicted of a crime and serves a prison sentence, it may be open to the employer to argue that the contract of employment can be terminated as the employee is unable to discharge their duties.

In Gerard McVeigh v Dunnes Stores [ADJ-00036287], the Workplace Relations Commission (the “WRC”) found that the complainant had not been unfairly dismissed by his employer for gross misconduct after he was charged with a criminal offence. The complainant had been employed by the respondent as a General Assistant between 22 June 2017 and 8 September 2021. It would appear from the decision of the WRC that the complainant was arrested under the Criminal Law (Sexual Offences Act) 2017 following an incident in another store. This incident came to the attention of the respondent after it had been reported in a newspaper.

The complainant was questioned about the issue, and he confirmed to his employer that he had been arrested but declined to provide any further details. The employer made the decision to suspend the complainant on pay pending an investigation. At an investigation meeting with the Store Manager, the complainant was questioned about the incident and the newspaper article. The complainant advised that he was under legal advice not to discuss the matter with anyone, that he was innocent and that he was going to fight the charges. At a later meeting, the complainant was informed that he was dismissed with immediate effect as a result of his alleged inappropriate conduct outside the workplace. The respondent had referred to the Dunnes Stores Code of Conduct which set out the following passage “We expect staff to maintain proper standards of integrity and conduct and not to do anything which is likely to bring the Company’s reputation into disrepute either during or outside the course of your employment”. In dismissing the complainant, the respondent had concluded that the complainant’s alleged conduct was inappropriate and had the potential to damage the reputation of Dunnes Stores in the eyes of their customers. The complainant was also informed of his right to appeal the decision to dismiss. His appeal was unsuccessful.

It was submitted to the WRC that the complainant’s suspension was unnecessary and unjustified. The complainant further submitted that that the manner in which the complainant was invited to attend the investigation meetings was grossly unfair and he was not informed prior to the meetings the nature and specifics of the meetings or the fact that these meetings might lead to a sanction up to and including dismissal. He further contended that he had not been made aware of the seriousness of the matter and that he had been  denied the opportunity to have a trade union representative present at the meeting. In addition, the complainant submitted that the investigation officer acted as “Judge, Jury and Executioner” in that the same store manager had carried out three investigation meetings and then made the decision to invoke the disciplinary procedures and acted as the disciplinary manger and decided to dismiss the complainant.

The respondent submitted that there were substantial grounds justifying the termination of the employment. The respondent further asserted that the dismissal of the complainant was reasonable in all the circumstances, and it could not be seriously suggested that the sanction of dismissal was outside the “band of reasonable responses”. Relying on the Supreme Court decision in Mooney v An Post [1998] 4 IR 288, the respondent submitted that the absence of the complainant’s cooperation made it impossible to conduct the investigation in relation to the events which underpinned the criminal prosecution.  The respondent further submitted that the company was not in a position to ignore the charges having regard to the potential for reputational harm and there was no exculpatory information provided by the complainant who was under an obligation to do so. In response to the complainant’s submission that there were procedural deficits in the process, the respondent provided that even if there were (which was denied), these deficits did not imperil the complainant’s right to a fair hearing.

In coming to decision, the Adjudication Officer considered whether the employer’s decision was fair within the band of reasonableness test. The Adjudication Officer was of the view that the allegations against the complainant were very serious and would have important implications for both the respondent and the complainant. The Adjudication Officer found that the action of the respondent in dismissing the complainant for gross misconduct was within the range of reasonable responses open to it and that substantial grounds did exist to justify the Complainant’s dismissal after considering the following:

• The respondent had a policy in place which dealt with an incident of this kind;
• The evidence of the complainant that he was unaware of the nature of the matter being investigated was not accepted as the complainant knew the specific reason why he had been suspended;
• The complainant had been given many opportunities by the respondent to clarify matters;
•  The evidence of the complainant that he did not appreciate the seriousness of the situation until he received written notice did not stand up to scrutiny as the complainant had been suspended and he had been advised that his employer would be determining whether his employment could continue;
• The complainant could have taken advice from his trade union at any stage of the process;
• There was no evidence to suggest that the investigation officer had in any way acted in such a manner that would compromise a fair and impartial hearing.

Takeaway for employers:

The above case does not give employers the automatic right to dismiss an employee for incidents which occur outside of the workplace. Where an employee is charged with a criminal offence not related to work, it is not in itself a reason for disciplinary action. Should information concerning an employee being charged with a criminal offence come to light, the employer should have due regard to its own policies and procedures before deciding upon the appropriate course of action.  

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