“CAN I DISMISS???!!!” WHEN YOUR EMPLOYEE COMMITS A CRIMINAL OFFENCE UNRELATED TO HIS CONTRACT OF SERVICE AND OUTSIDE WORKING HOURS

Introduction.

According to the Employment Act, 2006, an employer can discharge an employee from employment at his or her initiative where the employee commits verifiable misconduct. Section 68 of the same Act necessitates the employer to prove the reasons for dismissal in an instance where there is a claim against him or her arising out of termination, and that the reasons for dismissal shall be matters which the employer, at the time of dismissal, genuinely believed to exist and which caused him or her to dismiss the employee. The implication of this section is that an employer cannot dismiss an employee basing on matters he is not sure were true or existed by the time of dismissal, otherwise, it would be an unfair dismissal, liable to be challenged in Court.

Section 66 of the Employment Act provides that before an employer reaches a decision to dismiss an employee on the grounds of misconduct, he shall accord the employee a fair hearing. The section envisions a sort of disciplinary hearing with a right to representation for the employee, to ascertain whether or not the misconduct was committed.

The Employer’s Dilemma.

The dilemma for employers then becomes, what then happens where an employee commits a criminal offence off the work premises? Well knowing that prosecution of criminal offences, hearing and conviction is a preserve of the state, does an employer have to wait for the outcome of a trial or police report? Is the employer’s personal investigation and disciplinary hearing at work sufficient to form a reasonable belief that the offence was committed? Where an employee commits a criminal offence out of the course of employment or completely unrelated to his contract of service, but yet fulfilling the terms of his contract of service, on what grounds would an employer dismiss such an employee?

Considerations for an employer before dismissal for a criminal offence committed outside working hours.

Although the Courts of law in Uganda do not give a unanimous position on any of the above circumstances, we can draw from jurisprudence on other jurisdictions to forge a way out.

It is important to note that whereas it is the right of an employer to hire and let go of an employee they either would like or would not want to continue with respectively, this right must be exercised with caution to avoid claims of unfair/unlawful dismissal/termination.

Criminal Offences as part of Conduct. 

Different organizations and companies usually have Human Resource Manuals that spell out what amounts to misconduct. If an employee is dismissed for a criminal offence, the reason will usually be misconduct.  In practice, a dismissal based on misconduct will only be fair if the employer has formed a genuine belief on reasonable grounds, that is to say, reasonable investigation, that the offence in question has been committed. This reasonable investigation may be a police report or any other credible investigation. In Harris (Ispwich) Ltd v Harrison [1978], court held that an employer need not wait for the outcome of a trial so long as he/she has obtained sufficient material to justify its decision to dismiss even if the employee is later acquitted.

Connection between offence and employment

The appropriate action for the employer depends on the nature of the specific facts at hand. A closeness of the connection between the offence and the employment are key.

Section 3(9) of the Disciplinary Code in Schedule 1 of the Employment Act states that:

“the fact that an employee is charged with, or remanded in custody or is convicted of a criminal offence for an act committed outside working hours shall not automatically give rise to a dismissal and consideration in such cases shall always be given to the extent to which such a conviction makes the employee unsuitable for his work.”

 In Moore v C and A Modes [1981], it was held that where the alleged criminal conduct is fundamentally incompatible with the employee’s work, the dismissal will be fair even though it was committed outside working hours. In this case, a supervisor in a department store was dismissed after stealing from another shop nearby. Similarly in Norfolk County Council v Bernard [1979], the dismissal of a teacher who was convicted of possessing cannabis outside work was held to be unfair since he worked with adults only. On the contrary, in Tabor v Mid Glamorgan [1981], a teacher was dismissed for the same offence because he teenage children and could therefore influence them.

From the above, it can be concluded that the decision on whether or not to dismiss for a criminal offence done outside working hours depends largely on the degree to which the conduct reflects on the employer-employee relationship.

The Gravity of the Offence.

In some cases, where the criminal charge is considered so serious in itself that even where the conduct occurs outside work, the employer can fairly dismiss, regardless of whether the employee has committed the offence in question. In Kearney v Royal Mail Group [2011], the employment tribunal held that the dismissal of an employee charged with murder was fair because murder was a serious offence.

In other words, where an offence is serious, say for example a capital offence, the employer can dismiss fairly and does not need to first form a genuine belief that the offence was committed.

Should the employer hold its own investigation?

When a criminal charge has been brought against an employee, it is still considered important for the employer to conduct its own investigation into the issues and consider the options available. The case of  Ali v Sovereign Buses (London) Ltd [2006] gave the following guidance when there are concurrent disciplinary and criminal proceedings:

·        it may be impractical for an employer to wait before making a decision if a criminal case is going to take many months to come to court;

·        the size and nature of the employer’s business, as well its disciplinary policy and the employee’s terms and conditions, may be relevant to whether it is fair to continue with its investigation or wait for the criminal proceedings to conclude;

·        there is no rule that once an employee has been charged with a criminal offence, the employer cannot dismiss them if they have been advised to say nothing until the trial;

·        the employer must offer the employee the opportunity to explain their conduct and if it is contemplating dismissal, it must make this clear to the employee;

·        where the employer only learns of a problem when the police advise that they are bringing charges, it should still investigate and give the employee the chance to state their position, even if they don’t take that opportunity and the investigation and interview are fruitless; and

·        in extreme cases, the circumstances may be so obvious (where the employee has been caught red handed, for example) that the employer does not need to investigate further.

 

Where the criminal charge against the employee occasions reputational damage to the employer’s business.

It may be appropriate to consider the reputational damage that a criminal charge could have on the employer’s business. Leach v Office of Communications [2012] is an example where the employer was held to have fairly dismissed the employee for SOSR as it considered that the allegations carried a significant risk of reputational damage. The allegations were that the employee had indecently assaulted a child and had visited brothels known to supply children. Although the employee’s job did not involve working with children, child protection was one of Ofcom’s responsibilities.

However, Lafferty v Nuffield Health [2020] expressed the view that it would not be open to an employer to dismiss an employee for reputational reasons just because they faced a criminal charge. There must be some relationship between the allegations and the potential for damage to reputation.

 

Conclusion.

Dismissal of an employee for a criminal offence committed outside working hours could be considered taking into consideration a number of aspects including the connection between the employment and the offence, the gravity of the criminal offence, and the reputational damage the employer’s business could take as a result of maintaining the employee. While the Employment Act states that the misconduct should be verifiable in that the employer should have a genuine belief that the misconduct occurred, it is likely that in some instances, even where the employer might not be in position to form such belief, he can dismiss the employee fairly, depending on the facts of the case.

It is however advisable that generally speaking, the employer must still follow fair and reasonable procedures, such as a fair hearing, before taking the decision to dismiss. Sometimes it might not be practical to wait utill the end of the trial as trials may take a very long time before they ae concluded.

The Employment Act prescribes in its Disciplinary Code that where a decision to dismiss is taken, the dismissal shall be with notice or wages in lieu of notice. It goes ahead to state that under normal circumstances, dismissal shall not be imposed as a penalty without the employee having received a final written warning that he or she was in danger of losing his or her job because of his or her conduct and before deciding on dismissal as the appropriate penalty, an employer shall first consider alternative penalties including the loss of privileges, job transfer or suspension without pay.

These should be complied with as far as the circumstances permit.

 

 

Disclaimer.

The contents of this post are intended to convey general information only and not to provide legal advice or opinions. They should neither be construed nor relied upon as legal advice in any particular circumstance. An Advocate should be contacted for advice on specific factual legal issues.