John Kelly

Following the sentencing of Irish League footballer Jay Donnelly last month for the distribution of an indecent image of a child, there has been much debate around the response of his employer. Some have suggested that Cliftonville F.C. should have taken firm action much more quickly, whilst others say the whole saga has little or nothing to do with his employer. Whilst I don’t intend to comment on the specifics of that case, the story does give rise to an interesting discussion around what action employers should take in such circumstances.

Unless there is an express contractual provision to the contrary, most employees will not be under an obligation to advise their employer that they have been charged with, or convicted of, a criminal offence. Accordingly, some employers will only learn that an employee is in trouble with the law once it emerges through the media or when the employee suddenly disappears from work due to the imposition of a custodial sentence.

What should an employer do when the information does come to light?

It is vital that there is no drastic knee-jerk reaction from HR. After giving due regard to their own policies and procedures, the best course of action might be to place the employee on a period of paid precautionary suspension. The employer should then carry out its own investigation and follow a fair procedure before reaching a decision to take any disciplinary action. The fact that an employee has been charged or convicted in relation to a criminal offence which took place outside the workplace will not in itself merit a disciplinary sanction.

In reaching a decision as to whether disciplinary action might result, employers should consider factors such as:

• Whether the continued employment of that individual might damage the reputation of the employer. In extreme cases, where an employee has just been charged with a very serious offence (such as murder or rape) and not yet convicted, an employer could still fairly dismiss, particularly where its disciplinary policy states that dismissal may follow when an employee has acted in a way which “may” bring the employer into disrepute.
• The impact the charge or conviction has on the employee’s suitability to perform their role and their relationship with the employer (i.e. whether the implied fundamental term of trust and confidence has been breached), colleagues and customers. Employers should consider the nature and gravity of the offence, the nature of the person’s duties and, for example, the extent to which it involves contact with other employees or members of the public. To use an example, it will likely follow that an individual convicted of a sexual offence against a child can no longer carry out a role where they are required to have contact with children or vulnerable adults. In even simpler cases, any prison sentence in excess of a number of months will obviously deem the employee unable to attend work and fulfil their contract of employment and so dismissal will most likely ensue.

If, on the other hand, there is no adverse effect on an employee’s suitability or ability to perform their duties, the charge or conviction should have no bearing. For example, where a “nine-to-five” office-based employee is convicted of a serious road traffic offence, it would be difficult to justify any internal disciplinary sanction.

It is important to point out that, where an employer does reach a decision to dismiss an employee in connection with a criminal offence outside the workplace (whether for reasons of suitability, ability or reputational damage), employers in Northern Ireland should ensure they still comply with their own disciplinary policy, the statutory dismissal procedures and the LRA Code of Practice on Disciplinary and Grievance Procedures to ensure the dismissal is procedurally sound.

• John Kelly is a solicitor specialising in employment law at Worthingtons Solicitors in Belfast. View his profile here.