Media continue to focus on football hooliganism at Euro 2016 – what’s that got to do with your staff?
Most individuals will support their chosen nation from the comfort of their armchair over the coming weeks, but some will be lucky enough to have time off work to travel to France to indulge their passion for live football. Whilst in the minority, there will be others whose only goal will be to indulge their passion for football hooliganism.
The French authorities have shown zero tolerance towards to any bad behaviour; the response has been and continues to be swift. Depending on the severity of the offence, guilty fans have been fined or given custodial sentences irrespective of nationality.
What is your response if one of your employees is one of these guilty fans who is incarcerated in France?
Your immediate reaction may be to dismiss the employee, but is this fair if their imprisonment arose from actions that were completely separate to their employment?
The answer is that where there is misconduct outside of the workplace, it might be fair to dismiss where the misconduct affects (or could affect) the employee when they are doing their work.
Be aware there is no automatic right to dismiss
An employer cannot automatically assume that an employee can be dismissed because they have been convicted of a criminal offence, even where they are given a custodial sentence – see below. An employer would need to consider:
- what effect the conviction has on the employee’s suitability to do their job; and
- their relationship with their employer, work colleagues and customers.
Cases involving violence, such as hooliganism, are more likely to affect the employment relationship either because of:
- the nature of the work (if an employee’s job is working with children or vulnerable people any form of violence is unlikely to be tolerated); or
- damage to the employer’s reputation (no employer is likely to want to be associated with football hooliganism and this could cause more damage to some organisations than others. If there is significant negative publicity in the media, this is more likely to damage an organisation’s reputation).
An employer who dismisses in response to an employee’s criminal conviction without having considered the elements above, should expect swift receipt of an unfair dismissal claim (unless the employee has less than 2 years’ service, and so will not usually be able to bring such a claim).
What if the employee is in prison?
If an employee is in custody, the employer must also consider whether, in light of the needs of the organisation, the employee’s job can be held open. The longer the period of imprisonment, the more likely it is to be a fair decision that the employee’s job cannot be held open.
In some cases where there is a particularly long duration of imprisonment, employment may end by reason of “frustration”, which mean the contract can no longer be performed. In theory, no process needs to be followed if frustration applies. Employers should always seek legal advice on whether this could apply rather than assuming that it will; frustration is a concept employment tribunals often struggle with as a reason for concluding the employment has ended.
Follow a reasonable process
When there is a criminal charge or conviction, a reasonable and fair process should be followed, as with any misconduct dismissal, which should consist of a reasonable investigation followed by a disciplinary hearing where the employee has a reasonable opportunity to respond to the allegations against them. If, however, the employer cannot contact the employee or the employee will not co-operate, this does not mean the employer cannot continue with the process; an employer could offer to conduct the process in writing or based on the information they have.
For further advice on dismissing employees who have been charged or convicted with a criminal offence – please contact:
+44 (0) 808 172 93 22
This update is for general guidance only and does not constitute definitive advice.