CRIMINAL RECORDS - 09.03.2006

Giving a bad name

Bad name

As a result of the newspaper coverage, you feel that your name has been dragged through the mud. As this guy has cautions for similar offences, won’t everyone feel that you’ve condoned his behaviour by not sacking him? Consequently, you now want to take serious action in order to limit the damage.

Warning. Having your name in the local paper isn’t necessarily a sufficiently good reason to sack the employee - it all depends on the circumstances. The leading case on this area is Liddiard v Post Office. Here, a football hooligan (who was a postman) was jailed in France for violence during the World Cup. He was subsequently sacked by his employer after the story was splashed all over The Sun. However, this was an extreme case due to the nature of the employee’s conduct, it had brought the employer’s name into disrepute and resulted in intense media coverage.

Tip. Do your homework before jumping to the wrong conclusion. See if the case has been reported elsewhere, e.g. look on the Internet, the local paper’s website, the national press etc. The more adverse publicity there is, particularly if it’s on a national scale, the stronger your position will be to, e.g. to dismiss. Conversely, a couple of centimetres on page 27 of your local weekly will hardly damage your reputation.

The offence itself

It’s not as simple as saying that just because the employee’s been convicted of any criminal offence, he can be fired. Any disciplinary action must always be fair and reasonable. Generally, an employee’s conduct outside the workplace isn’t a reason to show them the door. What you must ask yourself is; “does the offence have any bearing on the type of work that this employee performs?” In other words, there’s got to be a genuine connection between the employee’s misdemeanour and the job he does, e.g. an employee convicted of theft who handles money.

Alternatives. If dismissal isn’t an option, what about denying them their promotion? Or could you demote them? You can’t “punish” an employee directly in this way - unless you have the contractual right to do so.

Tip. In future, consideramending contractual wording such that you reserve the right to demote an employee if they’re convicted of, e.g. a criminal offence.

Should he have disclosed?

Finally, should the employee have told you about his previous cautions? Again, the answer is no, unless he was specifically asked the question on any job application form, or he’s working in one of the excepted categories of employment, e.g. with children etc. Sometimes, even if the question’s asked, the Rehabilitation of Offenders Act 1974 (ROA) allows the employee to keep mum if his conviction is spent, i.e. a certain number of years have passed.

Tip. Although convictions may be spent, cautions can’t be because the ROA only currently covers convictions. As a caution isn’t a conviction, they must be disclosed (if asked for).