The case of ex-Sunderland footballer Adam Johnson has been in the headlines in the past few weeks, as he is currently on trial for alleged sexual activity with a 15 year old girl (he has admitted two other offences). As a Sunderland fan (for my sins!), my interest in the case has partly been for its implications for the club, but as an employment lawyer the case is an example of a scenario I am often asked about – what employers can and cannot do when employees are facing criminal charges.
In Johnson’s case, when he was first arrested in March 2015 he was suspended by Sunderland, but after five weeks the club allowed him to resume playing. He was then charged in April 2015, and indicated his intention to plead not guilty. However, at the start of his trial on 10 February 2016 he changed his plea to guilty in relation to two of the offences. Following his change in plea, he was dismissed by Sunderland the next day.
Although it was initially suspected that Sunderland had been taken by surprise by the guilty plea, there has been some suggestion during the trial that the club may have known from a fairly early stage that there was truth to some of the allegations.
So could Sunderland have dismissed sooner, and what can we learn from the case that may apply to mere mortals who earn less than £60,000 per week?
Unfortunately, it is not unusual for employers to come across situations where employees are accused of criminal offences, sometimes serious offences. Some people mistakenly believe that employers cannot dismiss someone for criminal matters unless they are found guilty (or in Johnson’s case, plead guilty). That is not necessarily correct.
The first thing to consider is whether the allegation affects the employee’s work for the employer. This could be either because it directly affects the employer’s reputation, or because it affects the employee’s relationship with colleagues or customers. Assuming it does, then there are potential grounds for dismissal.
If the employee has at least two years’ service (and is therefore protected against unfair dismissal) then it will be crucial to follow a fair procedure if you are considering dismissing them in relation to the allegations they are facing. This will involve considering a range of factors, including how relevant the offence is to the employee’s work. Obviously where there are allegations of dishonesty this may be particularly relevant to someone who works in areas such as security or financial services, and where there are allegations relating to safeguarding matters that would be very significant for staff who work with children or vulnerable adults. It will also be important to consider whether there are ways the employee could remain in employment, such as any possibility of moving them to another part of the organisation.
Of course where someone is earning footballer money, the maximum unfair dismissal rights pale into insignificance in comparison to the contractual payments – but for most employers the maximum compensatory award of a year’s pay (or £78,335, whichever is the lower) means it is very important to minimise exposure by following the right process.
One issue that can arise with criminal allegations is that the employee may be advised by their solicitor not to comment, which can hamper an employer’s ability to investigate. If that is the case, the employer should give the employee the opportunity to explain and should carry out a reasonable investigation as far as possible in the circumstances. Having said that, an employer will often not be able to wait until the outcome of the criminal case is known, because that can take many months – as Johnson’s case shows, where it has taken nearly a year to reach trial. ACAS guidance specifically states that employers can still dismiss if the employee exercises their right to silence, and also that employers do not have to wait for the outcome of a prosecution before they take action. On that basis, Sunderland could perhaps have dismissed Johnson sooner, but there may well have been other factors to consider as well (possibly the fact that he scored several goals in the period leading up to his trial).
In considering whether to dismiss, it is worth remembering that an employer is not bound by the same standard of proof as the criminal courts – the evidence is considered on ‘the balance of probabilities’ rather than ‘beyond reasonable doubt’. This can sometimes mean it is fair to dismiss even if the person is acquitted, although it would be fairly unusual for an employer to take that step.
If an employee is given a custodial sentence then contrary to popular belief, their employment does not automatically end. Each case will depend on its own facts, but certainly with lengthy prison sentences it will generally be clear that the contract is ‘frustrated’, i.e. it comes to an end due to an event outside the parties’ control. Our previous article on the meaning of frustration (and how it can apply in ill-health cases) can be found here. The difficulty comes where the sentence may not necessarily be long enough for the employer to argue frustration, which is not an exact science.
In conclusion, there are a number of options available to employers whose employees are accused of criminal offences. Choosing the right approach for your particular situation is important and it is a good idea to consider all the relevant factors as I am sure Sunderland will have done in the case of Adam Johnson. If in doubt it is always best to take advice. The team here at Pure Employment Law have advised on many situations over the years involving employees accused of criminal offences, and we are always happy to talk things through.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).