As the cities affected by the recent rioting and public disorder last month begin to recover, the long arm of the law is already catching up with those responsible. However, contrary to many people’s perceptions, the protagonists are not all unemployed ruffians and disenfranchised teenagers. Indeed, a good number of those arrested have stable jobs within the working masses. Whether they get to keep those jobs is a different matter.
One of the most heavily publicised cases is that of Alexis Bailey, of South London. Having already appeared before magistrates for his part in recent events, Mr Bailey will be one of the first to be sentenced after admitting his part in the looting of an electrical goods store. As well as facing the promise of a custodial sentence, it is highly likely that the Governors of the Stockwell Primary School – Mr Bailey’s employers – will be looking at Mr Bailey’s behaviour.
It is a well established principle of employment law that employers can lawfully dismiss employees for misconduct which occurs outside working hours, provided that the conduct has some direct or indirect effect on their ability to undertake their work. In this instance, as Mr Bailey works with children, he is in a position of trust and is supposed to be a role model. Having been roundly derided by the press, it is safe to say that the governing body properly have grounds for concern.
When considering how to deal with this kind of misconduct, the ACAS Code of Practice recommends that employers should consider the impact of a criminal charge or conviction on the employee’s suitability to do the job and on his relationship with both his employer, his colleagues and clients of the business (or, in this case, parents of pupils).
Where the conduct in question has the potential to bring the employer’s name into disrepute and has been admitted, it is unlikely that the employer will need to wait for the sentence to be ordered before deciding to discipline or dismiss the employee. The School could also be roundly criticised if it was not seen to take urgent action.
Ultimately, the fairness of a dismissal is not conditional upon the employee being found guilty by the criminal court. For a start two entirely different tests apply. To secure a conviction the Crown must prove that the individual was guilty beyond reasonable doubt. An employer on the other hand only needs a reasonable belief on a balance of probabilities to sustain their decision.
Whether the conduct has been admitted or not and regardless of how foolish or reckless the behaviour in question was, an employer should still take the time to go through a fair process and to be seen to establish the necessary connection between it and the employment relationship.
If you would like further advice on this or any other employment issue, contact Jo-Anne Graham