What to do when an employee is arrested

Innocent until proven guilty?

You’ve just received a phone call from your employees next of kin to advise that they can’t come into work as they have been arrested.

Where does this leave you?

Although an arrest suggests wrongdoing, it’s important to remember that a person is always innocent until proven guilty.

This means that you cannot treat an employee as though they’ve committed a criminal offence at this stage, nor is it an immediate assumption that they can no longer continue to work for you – whatever they have allegedly done.

What about pay?

In many cases, the employee will only be in police custody for a few hours. They will then either be free to go or charged and released.

Technically, as they’ve not attended work you don’t have to pay them but you may decide to do so at your discretion – especially if they are released without charge.

What about a serious charge?

There are situations when a charge could be potentially damaging to your business.

In situations such as this, you can suspend the employee pending an outcome.

However, if they have not been remanded in custody, you must continue to pay them.

Charges and remands

Conversely, if the employee is charged and immediately remanded into custody and unable to attend work, they have no right to be paid during this period.

Can you dismiss?

There is no automatic right to dismiss.

The Acas Code of Practice states that being charged with, or convicted of, a criminal offence is not normally in itself a reason for disciplinary/dismissal action.

Dismissal will only be a reasonable response if the conviction has a real bearing on the employee’s suitability and ability to do their job, the working relationship with you, their colleagues and relevant third parties, e.g. clients, customers and suppliers or your reputation.

What if they are sent to prison?

Strangely, you do still need to follow a fair dismissal procedure, otherwise, the dismissal could be unfair.

This poses difficult practical problems as you are unable to access the individual to further a procedure.

Depending on the length and nature of the conviction it may be more appropriate to “hold” any action until they are out.