I predict a riot – if rules are ignored over alleged lawbreaking

Images of rioters making merry with an assortment of shops, cars and streets were an uncomfortable reminder of the limitations of law and order. While many of those who faced charges appeared not too bothered about the type of loot they were lifting, the mob included many in gainful employment. So, what about their employers?

The obvious, knee-jerk reaction is to send them all to the dole queue, pending tarring and feathering, but the legal reality may not be so clear cut. If Joe Bloggs does a sterling ten-hour shift, working through his lunch break to hit that looming deadline, what is the boss’s response when he flicks on the six o’clock news and spots Bloggs emerging from a smashed shopfront with a plasma TV in his arms? Chances are plasma-grabbing Bloggs will be looking for a new job – but not so fast.

There are clear steps which need to be followed and points which need to be proven, before an employer can dismiss a worker for conduct away from the workplace.

Indeed, some of these points may save the jobs of people implicated in the rioting, just as they have favoured others who fell foul of the law but hung on to their employment.

Under the code of practice on disciplinary matters where an employee faces charges not related to work, disciplinary action is not compulsory.

If the employment contract does not define a criminal conviction as gross misconduct, the employer will have to prove that the conduct is relevant to the work being done – bad news for any retail workers caught looting from shops.

Bear in mind that normal procedure must be followed, with an investigation, a hearing and right of appeal. And dismissal should not be considered merely because charges have been laid – there will be trouble if a sacked Bloggs walks free, based on the fact his twin brother was the looter.

As an employer you must establish the facts of the case and decide whether it is serious enough to deserve disciplinary action, considering the effect the offence has on the employee’s suitability to do the job. It may be that bad publicity surrounding the issue could bring your organisation into disrepute.

In the case in June of Burns v Santander UK, branch manager Mr Burns was charged with 13 criminal offences and remanded in custody for several months. Throughout this period Santander did not pay his wages but did keep his job open for him. Mr Burns was convicted on a number of the charges but received a non-custodial sentence. 

On his release from prison, Santander suspended him pending disciplinary proceedings which ultimately resulted in dismissal. Mr Burns brought a claim for unpaid wages and the employment tribunal held that his contractual entitlement to pay ended when he did not provide consideration for it by attending work.

He appealed against this decision, stating that he had been willing to work but, being behind bars, was unable to do so.

However, the employment appeal tribunal found that his inability to work was “avoidable” and, although at the time that he was on remand he had not been convicted of anything, he had conducted himself in such a way that he was deprived of his freedom.

The Burns case clarifies matters for employers trying to work out whether to dismiss an employee on remand or to terminate the contract due to frustration.

An employer can now maintain the status quo and wait for the decision of the criminal courts before taking action.

The case also illustrates that a tribunal can look behind the reason for non-attendance at work to establish how responsible the employee is.

It is open to employers of those who have received lengthy sentences to simply declare the contract to be “frustrated” – which brings it to an end as the employee is no longer able to perform their obligations.

In short, if the judge throws away the key you can throw away the contract. Otherwise, the company’s alleged rioter, pervert or fraudster needs to be treated with care.

l Caroline Maher is a solicitor with CCW Business Lawyers