Reporting criminal offences clause

You can insert our clause into employment contracts to place a requirement on employees to inform you of any investigations, charges or prosecutions to which they’re subject relating to criminal offences.

Off-duty criminal offences

Where an employee is under investigation for, charged with or convicted of a criminal offence, it won’t normally in itself be a reason for taking disciplinary action against them if the offence was committed outside their workplace/working hours. In cases of off-duty criminal conduct, the Acas Code of Practice on Disciplinary and Grievance Procedures says that “consideration needs to be given to what effect the charge or conviction has on the employee’s suitability to do the job and their relationship with their employer, work colleagues and customers”. You should therefore first investigate the facts and carefully consider whether the nature of the (alleged) criminal conduct either makes the employee unsuitable for the type of work they do for you, taking into account their seniority and status, or adversely affects your relations with other employees or with clients/customers.

Dismissal

If you’re considering dismissal, do check the terms of your Disciplinary Procedure to ensure it includes, within the list of gross misconduct offences, behaviour outside the workplace/working hours which either results in or has the potential to result in criminal charges or convictions and which has the impact set out above. Criminal offences involving theft, dishonesty, violence or sexual conduct are the most likely to affect the employment relationship, and therefore justify dismissal, either because of: (a) the particular nature of the employee’s work, for example their job involves a high level of trust and integrity (theft and dishonesty offences) or caring for children or vulnerable adults (violence and sexual offences), or (b) general considerations about damage to your business reputation, for example the offence is committed by a staff member working in a high profile role or there’s been widespread negative media (or social media) publicity surrounding the case and a link has been made to you as the employee’s employer.

Notification obligation

Unless the employee tells you, or you read about it in the media, you probably won’t know they’re being investigated for or have been charged with or convicted of an off-duty criminal offence, as the police won’t generally contact you. So, our Reporting Criminal Offences Clause places the onus on the employee to inform you if they’re under investigation for, charged with and/or prosecuted over an alleged criminal offence that was committed outside the workplace when they were off duty, regardless of whether they reasonably believe the allegation to be true or not. We’ve also optionally stated that the notification obligation includes the receipt of a fixed penalty notice, which may cover a range of minor traffic and environmental offences, such as speeding and littering, although in reality these aren’t likely to lead to disciplinary action. Finally, we’ve made clear that although the police and the Crown Prosecution Service usually instigate these types of criminal proceedings, the reporting obligation also covers proceedings brought by other organisations, such as HMRC (for tax evasion, etc.).