FAQs for employers & HR professionals
Recent days have seen widespread protests, riots and violence spreading across the UK. Much of this has been racially aggravated. In this article, we consider some of the most frequently asked questions employers and HR professionals may have:
An employee has been arrested/charged/convicted due to their involvement in the riots, what should we do?
Employees who have had some involvement in the riots (whether directly participating, or inciting the riot e.g. via social media) may be arrested and charged with criminal offences. Employers should be wary of dismissing an employee based purely on a criminal charge, because they may be able to establish their innocence or the charges may later be dropped if there is insufficient evidence to secure conviction.
However, based on how the justice system has dealt with those involved in previous riots in the UK, those charged in connection with the riots will be unlikely to obtain bail, will very likely be remanded in custody and will receive harsh custodial sentences if subsequently convicted even if this is their first offence.
This view is reinforced by yesterday's (4 August) statement made by the Prime Minister Kier Starmer that "those who have participated in this violence will face the full force of the law. The police will be making arrests. Individuals will be held on remand. Charges will follow. And convictions will follow."
If an employee will be absent from work because they are in custody (whether on remand or following their conviction), the employer must consider whether their job can be kept open whilst they are in prison. It may be possible for the employer to argue that the employment contract has been frustrated because the employee's imprisonment makes their performance of the contract impossible; frustration means that there is no dismissal, the contract terminates by operation of law.
Alternatively, the employer may be able to dismiss fairly for misconduct or some other substantial reason. The employer needs to consider all the facts and decide whether the employee's conduct is serious enough to be treated as a formal disciplinary matter. The disciplinary procedure can be implemented if the charge or offence relates, directly or indirectly, to the employee's job (e.g. because it affects the employee's suitability to do the job) and this makes the employee unsuitable for their type of work (para 31 Acas Code). See further question re disciplinary action below.
Due to the complexity of the legal position, we recommend that specific legal advice is obtained before proceeding.
Do we need to pay an employee whilst they are in custody?
The employer does not need to pay an employee for any time they are unable to work because they have been imprisoned (either on remand or following conviction). An employee in this situation cannot rely on the unlawful deduction from wages legislation if they are not paid their wages during any time spent in prison.
We have evidence to suggest that our employee was involved in the riots or violence, can we take disciplinary action?
The disciplinary procedure can be triggered if the employer has reasonable evidence to suggest that an employee has either broken the employer's rules or policies (e.g. where the code of conduct makes it clear that conduct outside of work can result in disciplinary action), or has engaged in conduct which risks bringing the employer into disrepute or which affects the employee's suitability to do their job.
The employer must follow a fair disciplinary procedure to ensure that any disciplinary action taken is based on the employer's reasonable belief, following a reasonable investigation, that the employee is guilty of misconduct. Where the employer points to possible reputational damage, as well as the misconduct itself, this must be made clear to the employee. Failure to do so, will mean the employer is unable to rely on reputational damage as a ground for dismissal.
Depending on the circumstances it may be possible to rely on the outcome of any police investigation (e.g. witness statements, video footage) within the employer's investigation, but it is not necessary for the employer to prove the employee's criminal guilt. Any disciplinary sanction must be within the band of responses of a reasonable employer.
Must we await the outcome of criminal proceedings?
An employer does not need to postpone taking disciplinary action merely because the outcome of the prosecution is not known, although it is sometimes appropriate to adjourn disciplinary proceedings until the criminal proceedings are completed. In deciding how to proceed, the employer must balance its need to conclude the disciplinary process against the possible prejudice to the employee. It is important to check the disciplinary policy to see what this says will happen if there are criminal investigations/proceedings because there is an expectation this will be followed unless there are exceptional reasons to depart from it.
An employee facing criminal prosecution may be advised by their criminal lawyer not to engage in any disciplinary investigation for fear this may prejudice the outcome of criminal proceedings. If the employee refuses to co-operate with the disciplinary process, they should be advised in writing that, unless they co-operate, a decision will need to be taken on the basis of the information available and this could result in their dismissal.
If the employer chooses to await the outcome of criminal proceedings, the employer can rely on the employee's subsequent conviction (where applicable). The employer should follow a fair disciplinary procedure, including giving the employee an opportunity to explain their conduct and any mitigating circumstances.
What can we do to warn staff against participating in protests/riots?
Employers should consider urgently reminding staff clearly about:
- their duty to comply with the employer's code of conduct
- that conduct outside of work (e.g. joining protests/riots or making inappropriate comments on social media) can result in disciplinary action
- that they must treat their colleagues with dignity and respect
- that there is a zero-tolerance approach to discrimination or harassment
How can we support our staff during this time?
Some of the workforce, especially black, ethnic minority or migrant staff, may be feeling particularly vulnerable right now due to the racially aggravated nature of the violence and chants. Employers may therefore wish to take this opportunity to remind all staff of:
- How they can access emotional and practical support from their manager or HR
- How to report any incidents of discrimination or harassment they experience in the course of their employment
If staff request temporary adjustments (e.g. to work from home for a few weeks, or to adjust working times to avoid the need to commute on public transport at night) these should be given reasonable consideration.
We believe a protest may be taking place near our premises, what should we do?
You have a duty of care to protect the health and safety of your workers and others on your premises. The risk of violent protests arising is no different from any other risk – if the risk can be anticipated, all reasonably practicable steps should be taken to guard against it to ensure safety.
Depending on the circumstances, including how close you are in proximity to any known protest location, you should consider:
- Closing premises early
- Locking down or securing the building as much as possible (e.g. closing shutters)
- Allowing staff to leave work early, or work from home (where possible), to minimise the risk of them getting caught up in any violence or disorder
- Providing guidance to staff as to how to avoid and where necessary de-escalate confrontational situations where contact with protestors is unavoidable
- Considering and providing staff with guidance re lone working and personal security
- Sharing available information regarding transport arrangements with staff to allow them to plan their route to and from work safely
You should also remind staff, especially managers and others responsible for security or safety, of any procedures for dealing with violent or terrorist incidents.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.