Now that the riots have passed away, thanks in no small part to the rain and a lot of police, the inquests can start. And the legal proceedings. Police cells in London are said to be full to brimming with rioters and Magistrates Courts sitting all night and all weekend to get through the numbers being prosecuted. The airwaves and news media are thick with demands for retribution against the participants, for benefits to be cut and for evictions from social housing. Last week the Evening Standard carried a front page alleging that a teaching assistant had been arrested for participating in the riots. More such stories will surely follow and whilst it would be wrong to speculate on what might happen to any one particular person, are the Employment Tribunals going to get very busy over the next few months dealing with dismissed employees, leaving aside the issue that many rioters may have been unemployed or, scarily, beneath working age.
Would an employer be justified in sacking someone for rioting or looting even though it was committed outside work and there was nothing to link that person to the business? Whilst the cries are being made for “justice” (of the distinctly rough and ready variety) it would be sensible for employers not to wade in with the P45s too soon.
Consider the case in 2000, of a post clerk caught on camera in a serious brawl after an Arsenal match. He was subsequently identified in the newspapers as working for Consignia (remember that name?) and was dismissed. Crucially the reason for his dismissal was not for having taken part in the brawl but for having brought his employers into disrepute (through the ensuing publicity). However, it appears that he subsequently succeeded with a claim for unfair dismissal and reached a substantial settlement, helped it seems by the threat of London postmen going out on strike in support of him Clearly an employer needs to move very carefully before dismissing in these circumstances.
Some employment contracts, especially at more senior levels or in high profile jobs, will provide that the employee will not do anything to bring the employer into disrepute, although it’s probably unlikely that many employees in well remunerated jobs were engaged in the riots. So, in the absence of any contractual clauses how should employers approach this thorniest of difficulties?
Much will depend on the nature of the employee’s job and the type of offence for which they are convicted. Is the employer’s business likely to be impacted by the employee’s offence? In 1994 in the case of Securicor Guarding Ltd v Rouse the Appellant company had acted unfairly in dismissing a security guard prosecuted (but not convicted?) some years previously of sexually abusing children. Securicor were criticised for not asking their customer what they thought of having to deal with the employee. That seems like a slightly mad decision to me as asking customers to comment on the issue would presumably only bring the issue to the fore.
In a case on similar facts – Royal Life Estates(South) Ltd t/a Fox & Sons v Campbell – in 1993 the dismissal of a branch manager in a firm of estate agents who faced allegations of gross indecency – was held to be fair because it did not want to suffer damaging publicity. The difference? In the latter case it seems that the employee admitted his guilt, whereas in the first the allegations were vehemently denied and it was accepted that the estate agency’s reputation might be harmed
An employer might be at risk if they move too quickly before the truth of the allegations is established. That normally could cause a problem if the criminal proceedings drag on for months, as normally they would. However, with the criminal justice system seems to be in overdrive at the moment with people being taken before the Beak and sent down quicker than you can say “Take him down”.
In unfair dismissal cases there are two issues for the ET. Firstly, what was the reason for dismissal and, secondly, was it reasonable for the employer to rely upon that reason in dismissing the employee?
In respect of the first issue, in misconduct cases it is for the employer to prove that the employee was dismissed for that reason. There is a three stage test laid down by the case of British Home Stores v Burchell EAT 1980 ICR 303, which is this;
- At the time the employee was dismissed, did the employer believe the employee had been guilty of misconduct?
- Were there reasonable grounds for the belief?
- Did the employer carry out as much investigation into the circumstances of the case as was reasonable in all the circumstances before dismissing the employee?
There is thus no need for the employee to be guilty of the misconduct alleged, it is instead a case of the employer carrying out a proper investigation and being able to justify why the decision to dismiss was taken. But as I mentioned above, if the facts aren’t clear and an employee is dismissed without the employer understanding the allegation and the impact that might have on their business, a claim for unfair dismissal or discrimination might result. What is important are the facts as the employer understood them at the time of dismissal – so if later information becomes available that would help (or hinder) the employer’s case it is of no relevance to the issue of fairness. The test at (2) is an objective one.
In many of these cases, where the “misconduct” actually occurred away from the business and out of business hours, the employer might rely on “some other substantial reason” as the reason for dismissing the employee. This is a “catch all” category and allows an employer to dismiss an employee
Was it reasonable for the employer to dismiss? That question is governed by the “range of reasonable responses test” and if the employer reasonably thought that the alleged offence justified dismissal that will probably be sufficient. Much will depend on what the employee stands accused of, when the offences occurred, what harm it might do to the employer in being associated with the employee.
What of an employee sentenced to a term of imprisonment? In that situation the contract of employment may be said to have been “frustrated” and thus brought to an end. That wouldn’t count as a dismissal nor a breach of contract and thus neither a wrongful nor unfair dismissal claim can arise. However, the length of the prison sentence will need to be lengthy in comparison with the individual’s length of service.
What is clear is that knee-jerk responses should be avoided. There must be a thorough investigation so that the employer knows what the employee is accused of. For instance, what if the employee was genuinely caught up in the rioting, say foolishly, watching but not participating? They might be said to be stupid, but criminally liable? Would dismissal be a reasonable response? In a few months time my guess is that not only will we be seeing the criminal courts clogged up with people appealing the harshness of their sentences but also Employment Tribunals bursting with unfair dismissal claims by people dismissed from their jobs because of their alleged involvement in these riots.