Employee arrests: what employers need to do

Ben Atkin: My name’s Ben Atkin, I’m a Senior Associate in our Dispute Resolution and Reputation Management team. I’m joined by Matt Hardcastle, a partner in our criminal team, and Francesca Lopez, a legal director in our employment team.

Ben Atkin: In an effort to best showcase the topics that we’re touching on today and encourage discussion of them, we’ve built today’s seminar around a case study that touches on the various areas of expertise.

Ben Atkin: It won’t be a surprise to you to know that there are scenarios, one of which I’m about to go over, that quickly expand into different areas of law and can have varying consequences. And that’s why it’s so helpful for us to be able to do an event like this and talk about it.

Ben Atkin: So, broadly, we will be looking at what happens at a police station when an employee has been arrested, and the key timings of that.

Ben Atkin: How to manage criminal allegations involving staff.

Ben Atkin: Balancing criminal and employment processes.

Ben Atkin: Legal protections such as whistleblowing, discrimination and unfair dismissal.

Ben Atkin: And supporting the parties during investigations.

Ben Atkin: Taking us to the case study, if we could have the slide for that, please, so that you can read along with me.

Ben Atkin: Marcus Webb is a Senior Associate at Hardcore Consulting LLP. It’s a mid-sized professional services firm specialising in management consultancy.

Ben Atkin: Marcus is a high-performing employee with 6 years of service, no prior disciplinary record, and client-facing responsibilities. He holds a position of relative seniority and manages a small team.

Ben Atkin: On a Friday evening, the firm’s department holds an informal, self-organised night out at a city center bar. It’s not a firm-sponsored event, though several colleagues attend, and Marcus drinks heavily throughout the evening.

Ben Atkin: Later on in that same evening, Marcus becomes involved in a heated altercation with a member of the public outside of a nearby bar.

Ben Atkin: The altercation escalates into a physical fight. The police are called.

Ben Atkin: Marcus is arrested on suspicion of assault occasioning actual bodily harm, or ABH, under Section 47 of the Offences Against the Person Act 1861.

Ben Atkin: He’s taken to the police station, detained overnight, and released on bail with conditions the following morning, one condition being that he does not contact the alleged victim of the assault.

Ben Atkin: By Monday morning, the firm has become aware of the arrest through two routes. A colleague who witnessed the incident outside the bar, who mentions it informally to a manager, and Marcus himself sends a brief message to his line manager stating that he has had an incident over the weekend and may need to speak with HR.

Ben Atkin: So let’s start with the obvious.

Ben Atkin: Marcus’s arrest. Matt, could you please talk us through what happens at the police station, and the key timings which we ought to be aware of?

Matt Hardcastle: Absolutely. So, when somebody is arrested, they will often be arrested at the scene or at their house.

Matt Hardcastle: They then have to be taken to a police station, and that is a process that you might think would take only as long as the traffic takes to get someone from where they’re arrested to when they get to a police station.

Matt Hardcastle: But in and of itself.

Matt Hardcastle: That process can take many hours, and it’s quite common for it to be two, maybe three hours between when someone’s been arrested and when they actually are able to speak to anybody.

Matt Hardcastle: In the police station.

Matt Hardcastle: The police only have 24 hours initially to be able to question someone.

Matt Hardcastle: But most times, you will see that first period in the police station taking somewhere around 16 hours, and that’s just because of underfunding and inherent delays, and that’s going to be a theme that, regrettably, I come back to many times during this talk.

Matt Hardcastle: When someone is taken to the police station, they have the ability to make a phone call to let someone know where they are.

Matt Hardcastle: There are certain circumstances in which that right can be delayed, but most of the time, it’s open to them.

Matt Hardcastle: And people will often call a family member first.

Matt Hardcastle: What that does is, where an employee has been arrested, is it runs the risk of there being

Matt Hardcastle: Either a delay in the employer getting information.

Matt Hardcastle: Or information arriving in a way which is slightly incorrect, because…

Matt Hardcastle: The person who has been called.

Matt Hardcastle: Just for the sake of ease, let’s assume it’s the arrestee’s partner.

Matt Hardcastle: they are probably going to be hesitant in telling their partner’s employer that they’ve been arrested, because they won’t know what’s going to come from that. So what you might find is that there will be a degree of fudging in the information that’s given. Something like, something’s come up.

Matt Hardcastle: They’re just not going to be able to get in.

Matt Hardcastle: If you take nothing else away from this call, I would ask that you please don’t look too badly on someone who comes up with that sort of fudge right at the very start because they have so many things going through their minds at that point.

Matt Hardcastle: And it tends not to be, an intentional,

Matt Hardcastle: Choice to deceive and more just a default option of not really knowing what to say and not wanting to commit one way or another.

Matt Hardcastle: The arrestee will be told that they have the right to free advice and assistance from a duty solicitor.

Matt Hardcastle: Or they can instruct their own solicitor on a privately funded basis.

Matt Hardcastle: The solicitor will then get to the police station, and they will be given a summary of the allegation against Marcus.

Matt Hardcastle: And it really is a summary. So, for something like this, what the summary might end up saying, is something as limited as,

Matt Hardcastle: there was a fight last night, and your client is believed to have committed the offence of APH. It can be that, that limited.

Matt Hardcastle: And then they will need to talk to Marcus and they will need to try and understand from Marcus what happened. And in a solicitor’s mind, they will be thinking about the various different ways in which this may progress and the various different forms of evidence which may exist.

Matt Hardcastle: Like, have the police got any CCTV? Have they got witness statements from anybody else? If the answer to both of those questions is no, then they may think, well, actually, do the police really even have enough information at the moment to call for Marcus to give an answer in this interview?

Matt Hardcastle: They will need to factor all of that in, along with Marcus’s account, when they’re formulating the advice that they give him.

Matt Hardcastle: And at the start of any interview, what the police will do is they will read out the caution, something that will be known to anyone who’s watched budget TV. I’m giving away a little too much about myself, but I’ve certainly watched a lot of budget TV, and I know Ben has too.

Matt Hardcastle: And it says, you do not have to say anything, but it may harm your defense if you do not mention, when questioned, something you later rely on in court. Anything you do say may be given in evidence.

Matt Hardcastle: What that caution means in practice is that Marcus will have three options in this interview.

Matt Hardcastle: The first option is that Marcus can answer all of the police’s questions. The second option is that Marcus answers none of the police’s questions. Or the third option is that Marcus gives an account in writing.

Matt Hardcastle: And…

Matt Hardcastle: If a solicitor thinks that the police aren’t going to have enough evidence to be able to demonstrate that Marcus has been involved in this incident, or has committed an offence.

Matt Hardcastle: then the protective advice in those circumstances is to advise Marcus to say nothing at all, because then you are not giving the police any extra information. That information can be just as simple as the fact that Marcus accepts he was there and involved in a fight. You know, if Marcus doesn’t accept that, the police will have to prove it.

Matt Hardcastle: If there is a need for Marcus to give an account, then the options would almost certainly be a question of Marcus answering all questions, or Marcus answering questions by way of a written statement.

Matt Hardcastle: And there can be tactical reasons why you’d go for one or the other.

Matt Hardcastle: If Marcus has been advised by someone who has experience in dealing with investigations which may have concurrent employment investigations, then it may well be that the advice given is that Marcus should be giving an account in writing. But either way, in this sort of case, it’s likely that Marcus will give an account of some sort.

Matt Hardcastle: during the interview.

Matt Hardcastle: Marcus will then either be released with no further action taken, so the police have closed their investigation.

Matt Hardcastle: It’s highly unlikely that that would happen for this type of incident on the day. Most of the time, the police need

Matt Hardcastle: An additional period to conduct further investigation.

Matt Hardcastle: If the police feel that they have enough evidence to charge immediately, they can do that, and the case can go to court quite quickly.

Matt Hardcastle: But the majority of the time, what will happen is that Marcus will be released either on bail or under investigation.

Matt Hardcastle: In both circumstances, the police investigation continues, but where someone’s on bail.

Matt Hardcastle: The police are able to impose bail conditions, and a common bail condition for this type of case would be you’re not allowed to contact the person who’s made the complaint.

Matt Hardcastle: Bail can only be imposed for 3-month periods, up until the end, or in certain cases, it can be 6 months. But in general terms, it can only be for 3-month periods, and it’s extendable. So there’s no overall time limit for a police investigation to take place.

Matt Hardcastle: And where that leaves us is with investigations for something like this, which is often factually simple.

Matt Hardcastle: But a police investigation will take.

Matt Hardcastle: six months a year, quite comfortably, and then if it goes to court, depending on whether it’s the Magistrates Court or the Crown Court, you could be looking at another 18 months, two years after that.

Matt Hardcastle: So, from the moment someone’s arrested to the moment there is a final resolution in the criminal case.

Matt Hardcastle: A period of around 3 years is, quite depressingly now, a fairly routine timeframe.

Ben Atkin: That’s a lot to think about, thank you, Matt. So whilst all that’s going on on the criminal front, and you’ve got an employee who’s in difficulty, what can or should the employer be doing, Francesca?

Francesca Lopez: So employers aren’t obliged to wait for criminal proceedings to conclude before taking employment action. And I think that’s one of the critical messages for today. And in fact, there may actually be steps internally which employers need to take upon becoming aware of an employee’s arrest.

Francesca Lopez: For example, employers are under an obligation to provide a safe and supportive working environment for all staff. So, upon becoming aware of Marcus’s arrest, arguably it’d be appropriate for the employer to have a meeting with him to understand what’s happened, the charges against him, any relevant timelines or key dates, like those Matt has already discussed.

Francesca Lopez: And also any support which Marcus may require from HR, his managers, maybe the firm’s Employee Assistance Programme, for example.

Francesca Lopez: The employer will also need to consider whether there’s anything it needs to do to ensure the safe and supportive working environment for other staff as well.

Francesca Lopez: Is there a risk of Marcus becoming aggressive or abusive towards other colleagues, whether other colleagues, more generally within the business, but also those that witnessed the event?

Francesca Lopez: Does the employer need to take any steps in that respect? Also, the employer needs to consider what, if any, disclosures may need to be made.

Francesca Lopez: for example, to a regulatory or a supervisory body. Now, importantly, just because an employee has been arrested, it doesn’t mean that the employer has a carte blanche to instigate disciplinary action against them, so the employer would need to conduct an internal investigation

Francesca Lopez: and establish whether there was a fair and proper basis for engaging in disciplinary action before taking any.

Ben Atkin: Thank you.

Ben Atkin: Sticking with the employment law aspects for the moment, we know that Marcus has told his manager he had an incident over the weekend. Does he have to tell his employer that he was arrested? How forthright does he have to be with what happened?

Francesca Lopez: The short answer really is it depends. There’s no automatic legal obligation on an employee to disclose an arrest to their employer unless their contract of employment contains an express clause requiring them to do that.

Francesca Lopez: If their role is subject to regulatory requirements, for example, if they’re FCA regulated.

Francesca Lopez: If their role involves vulnerable people, if they’re a solicitor regulated by the SRA, for example. Also, if the conduct is directly relevant to their employment, then yes, they may need to disclose.

Francesca Lopez: But from Marcus’s perspective, he needs to review his employment contract and any applicable professional regulatory framework.

Francesca Lopez: And his employer, when it becomes aware of the incident, might also want to understand a bit more about what that incident was, so that it can understand whether it has any disclosure obligations to regulatory or supervisory bodies. If the firm has FCA permissions, or if Marcus holds any regulated status.

Francesca Lopez: There may be mandatory notification obligations to the regulator, potentially within 24 to 48 hours of the firm becoming aware. So this disclosure point is important for both the employee themselves, yes, but also the employer on that kind of regulatory playing field.

Ben Atkin: Okay, so what does the immediate response from HR on a Monday morning look like?

Francesca Lopez: So, when HR learns of Marcus’s request, the key thing is going to be trying to triage the matter, so HR is going to have to quickly assess the nature and seriousness of the allegations.

Francesca Lopez: Whether markers should be suspended, and if so, on what basis and terms, whether there are any immediate safeguarding concerns, particularly for the colleagues that may have witnessed the incident. I’ve already mentioned them, but whether any regulatory notifications are required.

Francesca Lopez: Who in the firm should also be involved about the matter… sorry, informed about the matter and involved in deciding next steps and actioning those steps? You know, if Marcus has got a client-facing role, what are we going to do with those clients? His managers are obviously going to need to be made aware, and the colleagues that he’s working with immediately within his team.

Francesca Lopez: To a certain extent, allowing for the confidentiality of the process, of course.

Francesca Lopez: The employer and HR also need to think about whether legal advice or guidance may be required. Now I’m obviously going to say this as a lawyer, but it’s advisable that that is done at an early stage. And HR is also going to have to consider how the matter should be investigated and by whom. I’ll come on to talk about that in a bit.

Ben Atkin: Okay. So thinking as if I was an employer, I imagine my first question would be, should I be suspending this person?

Francesca Lopez: Yeah, of course.

Ben Atkin: Can you talk us through the principles around that, please?

Francesca Lopez: So, I mean, it’s an obvious point for all employers to consider, but I think the key thing is that

Francesca Lopez: Suspension shouldn’t be a knee-jerk reaction, so the employer should really consider beforehand whether it’s necessary to suspend an employee like Marcus, why they’re doing it, and whether there are alternatives to suspension. Now, employers tend to say that suspension on full pay pending an investigation is a neutral act.

Francesca Lopez: But really, the impact on individuals can be severe. Now, that’s not only in terms of their reputation, their careers. Professionally, it has an impact, but also from a mental health and an emotional and personal perspective. So much so, in fact, that.

Francesca Lopez: ACAS has produced guidance on suspension during a work investigation with a specific section on supporting employees’ mental health during a suspension. So, the firm really needs to have.

Francesca Lopez: kind of one eye on that ACAS suspension guidance, as well as the terms of its own internal policies and procedures in relation to suspension, and that’s most likely going to fall within their disciplinary policy and procedure.

Francesca Lopez: Another key thing for employers to think about in this kind of situation, firms to think about, is individual employment contracts. They may also refer to the possibility of suspension during an investigation on what would happen, for example, regarding pay.

Francesca Lopez: So Marcus’s employment contract needs to be checked in this case. And given the seriousness of the allegations here, so we’re dealing with violent behaviour that led to an arrest, it may be reasonable to suspend Marcus during the investigation.

Francesca Lopez: However, one of the points I’ve already mentioned is the firm needs to consider first whether there are other alternatives to that suspension. So, for example, can Marcus work from home? Can he have, limited client or colleague contact?

Francesca Lopez: Things like that. If ultimately a decision is made to suspend him, his suspension should be on full pay unless his contract of employment provides otherwise.

Francesca Lopez: It should be kept under regular review. The suspension should be communicated to Marcus in writing, and the reasons for it communicated to, and it shouldn’t be treated as a disciplinary sanction in and of itself. It should be made clear to Marcus that it’s not a disciplinary sanction.

Francesca Lopez: I think it would also be worth the firm letting Marcus know what support is available, to him, and encouraging him to get that support at any stage in the process if he needs it. So, for example, the Employee Assistance Programme, any support from trained mental health first aiders around the firm, for example.

Francesca Lopez: And perhaps you can have an appointed point of contact within HR or management.

Francesca Lopez: So I think it’s those kind of things that we’d want to be thinking about. Also, in relation to suspension, the ACAS Guide on Disciplinaries and Grievances at Work.

Francesca Lopez: Makes clear that suspension should be kept as brief as possible. It shouldn’t exceed any maximum period that’s set out in an individual’s contract of employment.

Francesca Lopez: And ultimately, if it’s unreasonably prolonged, then it may be open to an individual like Marcus to take action for breach of contract. And in extreme cases, although this really would be extreme, to potentially resign and claim constructive dismissal. So, there’s a lot to think about in a suspension situation.

Francesca Lopez: So it should only really be considered if there are reasonable grounds.

Francesca Lopez: to believe that the employee might tamper with or destroy evidence, or could influence witnesses, or hamper the fair and proper, running of an independent and impartial investigation. If working relationships have

Francesca Lopez: broken down so severely that there’s a genuine risk to other employees, property, customers, clients, other business interests, if Marcus remains in the workplace physically.

Francesca Lopez: And if the employee is the subject of criminal proceedings, so Marcus is subject to criminal proceedings, which might affect his ability to actually perform his job.

Ben Atkin: I can definitely understand why, if you were an employee who had been suspended, even as a neutral act, you’d be sitting at home wondering what’s going to happen to you, and you’d be thinking about your career moving forward, so it’s not…

Ben Atkin: There’s no easy solution. And you said earlier that the employer ought to conduct an internal investigation and establish whether there’s a fair and proper basis for engaging in disciplinary action before taking any. What does that look like?

Francesca Lopez: So, in terms of conducting an investigation, there’s a few things that are kind of the initial headline points for employers to consider. So, who should carry out the investigation? Things like, should it be handled internally, or should it be conducted by an independent external investigator?

Francesca Lopez: to this end, employers really need to be thinking about the possible latter stages of a kind of… of an investigation process. So if there’s…

Francesca Lopez: as there would be in this situation, a possibility that there may be a disciplinary case to answer.

Francesca Lopez: the employer needs to bear in mind who might be able to carry out that subsequent disciplinary process, and also any appeal. So, internally, you need to make sure that you’ve got sufficiently appropriate senior managers in place who are kept out of the initial stages of the investigation to have the appropriate independence and impartiality to conduct any subsequent appeal.

Francesca Lopez: it may be easier to go externally for that very reason if you’re a small organization. Additionally, if external legal advice is being sought, the employer needs to think about who is going to be that small core group within the business, within HR or management, who will liaise with the external legal advisors, because

Francesca Lopez: there may be a situation where you need to try to protect privilege over an investigation. And if your client group is too broad, if there’s too much movement of information around the investigation between lawyers and other individuals within the business, then you risk losing that privilege.

Francesca Lopez: Another thing that employers need to think about is the standard of proof. So, an employment law standard of proof is the balance of probabilities. Is it more likely than not that the conduct occurred? But there are different considerations in a criminal context, aren’t there, Matt?

Matt Hardcastle: Yes and no.

Matt Hardcastle: So,

Matt Hardcastle: The… the commonly understood threshold for a criminal case is the threshold that exists at trial. So, is a jury satisfied so they’re sure that something’s happened? And in old money, that used to be, has the prosecution proved their case beyond reasonable doubt?

Matt Hardcastle: But that is only the standard of proof at the final stage for criminal case.

Matt Hardcastle: And actually it goes up in incremental steps. So for the police to conduct an investigation, so for them to arrest someone or for them to interview somebody.

Matt Hardcastle: All they need is some objective grounds that point towards an offence being committed and the suspect being the person who committed that offence.

Matt Hardcastle: And that can be, as simple as someone making an allegation.

Matt Hardcastle: So if I go into a police station and say that Ben’s punched me because I keep using him as my examples, that is enough for the police to conduct an investigation into Ben. That is enough for them to need to go and interview him.

Matt Hardcastle: And if I say I’m very scared of him because he’s in the office and he walks around sullenly, and he’s very intimidating, that they may go and arrest him so that they can put in place bail conditions on the basis of what I’ve described.

Matt Hardcastle: So, it really is an incredibly low entry point for an arrest and a police investigation.

Matt Hardcastle: The middle ground is the test that is imposed when the police and or the CPS, CPS being the Crown Prosecution Service or prosecution lawyers.

Matt Hardcastle: And it’s the test that they use when they are deciding whether they are going to take a case to court or not.

Matt Hardcastle: And… At that level, that threshold is whether there is a reasonable prospect of conviction.

Matt Hardcastle: And so that is balance of probability threshold.

Matt Hardcastle: So, a finding in an employment context that something has happened.

Matt Hardcastle: is a finding to the same level as would be taken at that stage. And I have had cases where

Matt Hardcastle: An internal investigation finds that something’s happened, but the CPS refused to authorise a charge. And I’ve also had cases where an internal investigation finds that the allegations weren’t proven, but the CPS takes the case to court.

Matt Hardcastle: So there is no rhyme nor reason, but it is roughly the same test that is imposed at that stage.

Francesca Lopez: I think, the key thing for employers to bear in mind from an employment law perspective is that

Francesca Lopez: an employer doesn’t have to wait for a criminal verdict, and shouldn’t be applying those criminal standards that Matt’s just been talking about in terms of its own internal proceedings. So, the principles established by employment case law require that for a fair dismissal, based on conduct.

Francesca Lopez: The employer has to have a genuine belief in the employee’s guilt, has to have reasonable grounds for that belief.

Francesca Lopez: and has to hold those reasonable grounds, having carried out a reasonable investigation into the circumstances. So those are the kind of the key things that an employer needs to bear in mind.

Francesca Lopez: regardless of what might be going on on the criminal side. But there is a real interplay between the employment law aspects and the criminal law aspects, and there’s a tension there. So, the ACAS code, outlines the general position for employers, which is that investigations should be carried out with unreasonable delay. But.

Francesca Lopez: if criminal proceedings commence, an employer may decide to, or may need to, put their investigation on hold until the criminal proceedings have concluded, and Matt has already alluded to how long those criminal proceedings can be in the running for. So.

Francesca Lopez: It may be that the employer is in a position where they still need to carry out their own internal investigation on the basis of the evidence that they have available to them, and draw conclusions from that. It may be that they do decide to wait, pending the outcome of a criminal.

Francesca Lopez: proceeding, criminal proceedings. But

Francesca Lopez: There’s no right or wrong answer, in short. It really is a balancing act for the employer, and it’s very, very fact-specific. If an employer does continue with its own investigation, then the investigators obviously need to be careful not to prejudice any criminal proceedings, and it may actually be that the employee in question is less likely to cooperate in an internal investigation if they believe it could harm their defense.

Francesca Lopez: to criminal proceedings, which will obviously be the much bigger piece.

Francesca Lopez: for the employee in question.

Ben Atkin: I can imagine Marcus being quite nervous about participating in any employment processes and having an interview, because anything he said could theoretically prejudice his criminal defense. Can Marcus bring a lawyer with him to the internal investigation meeting, just to give him some comfort about that?

Francesca Lopez: I think… so…

Francesca Lopez: He has a statutory right to be accompanied, by a trade union rep or a fellow colleague. It’s not by a lawyer or anyone else, and it only applies to a disciplinary hearing or an appeal or a grievance hearing or appeal, for example, so it’s not to an investigation meeting.

Francesca Lopez: But nevertheless, it may be that the firm’s policy, allows such a right. So it’s important to check Marcus’s contract of employment and also the firm’s policies on this.

Francesca Lopez: It may be, of benefit to allow Marcus to attend, an investigation meeting.

Francesca Lopez: with a companion. It may be that a personal friend or a family member is able to join. There may be circumstances in which it is appropriate for a lawyer to also accompany an employee, but there’s no mention in any ACAS guidance of that being a requirement in any respect. So, it’s something that the firm might want to consider, given the seriousness of the allegations against Marcus.

Francesca Lopez: and the police involvement.

Francesca Lopez: But it really is fact-specific, it’s something for all employers to keep under review.

Ben Atkin: Okay, I think there’s a bit of a understandable contradiction between different advice that an employee may receive, an employer may receive, given that they’ve all got different perspectives and needs to be met in that particular situation.

Ben Atkin: Francesca, what’s your advice on the employment side if you’re advising Marcus, what would you tell him to do?

Francesca Lopez: I mean, I think the difficulty for

Francesca Lopez: Employees in that situation is this kind of.

Francesca Lopez: desire to be open and transparent appear to be.

Francesca Lopez: being cooperative, and that is… that is really important, I think, in an employment context, that level of cooperation with your employer to try to essentially try to save your job. But obviously.

Francesca Lopez: as Matt’s explained, we’ve got this wider criminal piece in the background, so sometimes the advice to employees is that it’s

Francesca Lopez: Better not to say anything.

Francesca Lopez: but I think if you’re in a pure employment law context, obviously an individual wants to be cooperating with the employer and doing what they can to clear their name in any internal investigation proceedings.

Ben Atkin: Matt, what are you telling Marcus to do in these dark days?

Matt Hardcastle: The unhelpful thing of it, it depends. So… The…

Matt Hardcastle: They’re they’re they’re kind of very straightforward.

Matt Hardcastle: situation that we’ve used as our example, you would have Marcus, and let’s say in the police interview, Marcus has put forward a written statement, and it’s a written statement with some detail explaining what he did.

Matt Hardcastle: it would be open for Marcus to say.

Matt Hardcastle: That’s going to be my accounts in the, employment investigation. Here you go. That’s what I’ve got to say about it, and then it will be a matter for, for the employer.

Matt Hardcastle: And any advisors about whether they’re satisfied that that account would be able to stand as, as, his engagement with that investigation.

Matt Hardcastle: But what a criminal lawyer will not want to happen is for there to be.

Matt Hardcastle: two full accounts given verbally in, one in the police process and one in the, internal investigation process. And that’s not because Marcus is trying to do anything improper.

Matt Hardcastle: But just because it’s almost impossible to give an explanation of the same incident and for it to be effectively word for word when they take place at different times. So let’s say Marcus is interviewed in the police station, he’s interviewed the next morning.

Matt Hardcastle: He’s in a state of shock, he’s probably still a bit hungover, he hasn’t really slept, and he spent the entire night thinking about, oh my god, what am I going to tell my family? Have I lost my job?

Matt Hardcastle: This is awful, I can’t believe this is happening to me. And then he goes into a police interview,

Matt Hardcastle: And he goes and blurts out everything he can remember without really stopping to think about it, because all he’s trying to do is just give his account so he can get home and try and get his life back in order.

Matt Hardcastle: A couple of weeks later, or a week later, he’s asked to go in for,

Matt Hardcastle: an internal interview, he’s had the benefit of reflection, he’s been able to take some advice, he knows what he’s, what he remembers about that night, he may have heard things from other people, he may have been able to look back at his phone, whatever else it is, his account that second time isn’t going to be word-for-word what he said first time. And even where it is

Matt Hardcastle: For an entirely innocent purpose, when there starts being discrepancies between what’s said in one, interview and what’s said in the other interview, those things start standing out if the police ever get to look at both of them, and they’ll go, oh, that’s interesting, you said this to us, but now you’ve said something slightly different, and why has that come about?

Matt Hardcastle: So it can start running the risk of, affecting his credibility, even though it’s not intentional, even though it’s not for any improper purpose.

Matt Hardcastle: But actually, one of the knottier issues that we often see

Matt Hardcastle: is, where something like this has a little twist to it. So, Marcus is involved in the fight outside the pub, all of that’s the same, but just imagine for a moment that someone in the internal investigation says, Marcus has done a bit of cocaine that night.

Matt Hardcastle: Now, the police are unlikely to really care too much about the cocaine, but the employer might. And so, it becomes slightly different, because you’re… you’re…

Matt Hardcastle: You’re looking at areas which would be probably very impactful from an employment position and the use of drugs on a on a night out, but from a police position, probably not very impactful. And that starts influencing.

Matt Hardcastle: whether it is safe for Marcus to be able to engage in both processes, and how he can engage in both processes.

Matt Hardcastle: And the kind of the…

Matt Hardcastle: The best way forward is, if at all possible, for there to be an open dialogue between the employer and Marcus or Marcus’s representatives, so that there can be a proposal of what the employment process will look like.

Matt Hardcastle: There can be a discussion about whether there are sufficient safeguards for markers to be able to engage in that process without prejudging himself in the criminal investigation.

Matt Hardcastle: And then Marcus is able to make an informed decision about what he wants to do and whether he wants to engage in the employment process. And actually, you know, I think this will be Jez’s experience as well. It’s certainly been the experience when we’ve worked together.

Matt Hardcastle: Most employees want to engage in the employment process. They want to try and retain their job. They have an affinity with their work. They don’t want

Matt Hardcastle: All of those years of effort to fall apart over something like this, so it’s

Matt Hardcastle: It tends to be a way of allowing that to happen in a safe way, rather than trying to put in place blockers to stop it.

Ben Atkin: Great, thank you. The other issues to bear in mind when going through this process is that Marcus obviously has rights and protections under employment law.

Ben Atkin: And the firm’s going to obviously be keen to limit its exposure by not committing any wrongs against markers that lead to litigation and further problems where you might need me. Francesca, can you talk us through what those protections and potential claims could be?

Francesca Lopez: Yeah. Of course. So a big one for Marcus here is he has over two years continuity of service, and therefore, he has the right not to be unfairly dismissed under the Employment Rights Act 1996.

Francesca Lopez: If he is dismissed, the firm has to have both a fair reason for dismissing him, needs to be a potentially fair reason, and it needs to have acted reasonably in all the circumstances in following a fair procedure. Now, the… what we’re focusing on here is the band of reasonable responses test, so even if

Francesca Lopez: an employer was to conclude that dismissal is warranted in this particular situation, a tribunal will ask whether that dismissal fell within the band of reasonable responses available to a reasonable employer.

Francesca Lopez: And given the seriousness of the allegations here, so we’re talking about violent behaviour that resulted in arrest, dismissal is likely to be within that band if the investigation and any subsequent disciplinary procedure is conducted properly.

Francesca Lopez: Failure to follow a fair and proper process in line with the ACAS Code of Practice.

Francesca Lopez: can result in an employment tribunal were markers to bring a claim for unfair dismissal, increasing any compensatory award, by up to 25%. Now, I referred quite pointedly to the Employment Rights Act 1996 here. For dismissals taking effect after the 1st of January 2027, so not

Francesca Lopez: too distant future, there will be no statutory cap on the compensation award that may be made in successful unfair dismissal claims.

Francesca Lopez: So if Marcus is dismissed after that date and he’s a high earner, for example, then the firm’s exposure will be significantly greater if he is dismissed and that dismissal is found to be unfair.

Francesca Lopez: There’s also possible discrimination considerations to bear in mind here. If Marcus belongs to a protected group and can demonstrate that the investigation or any subsequent disciplinary process was conducted differently to how it would have been conducted for a comparator.

Francesca Lopez: Then he may have a possible discrimination claim, so HR needs to ensure, consistency of treatment, needs to consider whether any reasonable adjustments might need to be made to a process.

Francesca Lopez: That those kind of things. Also, there might be scope.

Francesca Lopez: for whistleblowing protection. Now, not on the pure facts of the case study as we know them, but let’s just say that during the investigation interview with HR.

Francesca Lopez: Marcus reveals that something similar like this has happened, at informal drinks six months previously, when another senior associate, or another senior colleague that he works with, let’s say it’s a chap called Simon, was involved in a fight.

Francesca Lopez: with someone else after an event, and Marcus says, well, everybody in the team knew about this, and he doesn’t understand why he’s being investigated, but nothing happened… nothing happened to Simon. So this… if this is news to the firm.

Francesca Lopez: Simon hadn’t been arrested, for example, after the event, and it had all just kind of blown over the next working day as everybody had had a bit too much to drink while we were being silly, then this potentially raises a number of other issues. So the firm HR has now been alerted to another possible occurrence of inappropriate behaviour, which it will need to look into. So that’s one issue, but

Francesca Lopez: Just parking that for the moment.

Francesca Lopez: The fact that Marcus has disclosed this information could potentially mean that he has whistleblower protection. So it could amount potentially to a protected disclosure under whistleblowing law. So the firm needs to think very carefully about the way it approaches Marcus.

Francesca Lopez: To ensure that there’s no scope for him to argue that he’s been subjected to detrimental treatment.

Francesca Lopez: Because he raised the issue about Simon.

Francesca Lopez: So there’s a few things to kind of consider there, but as we’ve been saying repeatedly throughout this, it’s fact-specific, it depends upon the circumstances, but these are the kind of the headline things that I’d be looking out for if I was advising.

Ben Atkin: Thank you. I’m going to overly empathise with Marcus again, just because we have so much in common, and I can tell that, really, it’s just a good bloke.

Francesca Lopez: And.

Ben Atkin: he’s had a fight outside of work, I mean, it’s not during his… the working day, it’s not really any of the employer’s business, is it? Why… why should they be involved at all? Why do they think they should be, you know, have the right to dismiss him?

Francesca Lopez: Well, you can dismiss for out-of-hours conduct as an employer, and it’s a really critical question. The general principle is that an employer can take disciplinary action for conduct outside of work if there’s a sufficiently close nexus between the conduct and the employment relationship. So the relevant factors for an employer to consider there are whether the conduct involved a colleague. Now, here we know it was witnessed.

Francesca Lopez: by colleagues. It’s not a determinative factor, but it does involve other colleagues.

Francesca Lopez: Whether the conduct affects Marcus’s suitability for his role, whether it damages or has the potential to damage the employer’s reputation, whether the conduct breaches an express contractual term. So, many professional services firms, for example, will have express clauses in individuals’ contracts of employment extending to behaviour outside of the workplace.

Francesca Lopez: Obviously, also whether the conduct involves a criminal offence that’s relevant to Marcus’s ability to carry out his role. So, in Marcus’s case, the nexus there, is actually quite strong on multiple fronts.

Francesca Lopez: I’ve already said, okay, the conduct didn’t involve a colleague directly, but it was witnessed by colleagues. It was violent conduct, so he’s quite a senior individual within the business, he has a client-facing role, you know, that may be relevant.

Francesca Lopez: If there is that reputational damage there, that’s going to be a live concern, for the firm. So.

Francesca Lopez: The fact that it wasn’t a firm-organized event, or it didn’t happen in the workplace physically, it doesn’t remove the employer’s ability to take disciplinary action if it feels it’s appropriate in the circumstances.

Ben Atkin: That’s good to know, thank you.

Ben Atkin: But… It’s my turn to speak.

Ben Atkin: I am, as I explained at the beginning, have a mixed practice of general commercial litigation, so anything that would arise out of a scenario like this that has caused somebody financial loss and may lead to the prospects of a court claim. And I also deal with reputation issues, which covers a very exciting and.

Ben Atkin: mixed bag of different areas of law, including defamation, privacy, data protection, and sometimes intellectual property as well, depending on the circumstances. Just because that last one seems a bit random, I’ll explain it quickly.

Ben Atkin: Say, for example, a newspaper had grabbed a photograph of you and published that as part of the story, there may be an argument to say if you were the copyright holder of the image that they had breached copyright in publishing it, and that may be an avenue to have the newspaper take it down.

Ben Atkin: So that’s, in a nutshell, what I do. The slide in front of you, and has been there for some time, which I’m always pleased about, is protecting the firm, the individuals, and the narrative. That may seem a little bit like witchcraft, particularly at this time of year. And, you know, how much can you really control the narrative? People are going to think what they’re going to think.

Ben Atkin: A lot of this session has been nightmare fuel for employers or anybody who’s in HR and dealing with this, and I’m pleased to tell you that I’m going to make it worse.

Ben Atkin: these situations can happen. Anybody who has an employee, even if it’s an employee of one, could, you know, a situation could happen to them, either wrongly accused or legitimate, where they’re at the pub on a Friday night, and something has happened, and

Ben Atkin: there is some consequence either to the employee or to the employer as a result of those actions.

Ben Atkin: That all generates a story, and depending on which side of the story we’re on, it can be better or worse for us.

Ben Atkin: The narrative here is really how that story is told.

Ben Atkin: And the different sort of whoever is talking about it, whether that is a harasser or somebody with a vested interest in what has happened or a member of the press, can all have an effect on how something is eventually remembered. And you will find if you watch one story in particular that’s grabbed your interest in the press.

Ben Atkin: that it can evolve in a sort of a creeping dread way, where the allegations can expand depending on the language that is used. And that’s really where we come in, to sit in across the top of all the other excellent work that our colleagues are doing.

Ben Atkin: to try to mitigate the harm that is caused in an already awful situation, and so that everyone is remembered in the best light possible, even in those unfortunate circumstances.

Ben Atkin: And one of the key things to start with is identifying stakeholders to any particular situation. An employer, for example, may have clients, they’re going to have employees, there’s going to be sort of partners, service providers.

Ben Atkin: prospective employees who have interviewed and are about to join the firm, all of these sorts of things. And depending on the size of what has happened, the event, you will have.

Ben Atkin: the press and journalists calling up the employees or calling employers and saying, what do you say about this? We’re after a comment. Now, a lot of publications are self-subscribed to

Ben Atkin: a sort of quasi-regulator, somebody who maintains editorial guidelines and keeps them on the somewhat straight and narrow. And as you’d hope, those editorial guidelines typically include

Ben Atkin: that the subject of any article should have a right of reply. And so they are very quick once the article is written and the ink is drying.

Ben Atkin: to approach the subject and say, what is it that you say about this? A, because I want to be able to include it in my article so that, it’s well-rounded, but B, I want to protect myself from any liability and any complaint from you in saying that.

Ben Atkin: I got the wrong end of the stick, or…

Ben Atkin: you know, there was something more I could or should have added. I mean, ultimately, they are journalists, you know, who journal and are trying to record what’s happened, depending on which publication they work for, and I won’t be…

Ben Atkin: disparaging about any of them, but they do want to get it right more often than not. The trick for an employer or employee, depending on who’s being approached by the journalist.

Ben Atkin: is not to say something like no comment, which, as Matt referred to earlier about budget TV, is the sort of common one that you say.

Ben Atkin: no comment is a comment, and they will quite happily take that and print it and say that they comply, they’ve ticked the box, I complied with my responsible right to seek a comment, received it, and that’s the end of it. Instead, what you should do is you should say.

Ben Atkin: Put what your question is in writing, email it to this email address, and we will get back to you. Buy yourself time. I mean, this is already a panicked situation where

Ben Atkin: you’ll feel like…

Ben Atkin: events have already sort of carried on. You know, Marcus did what he did on the Friday night or the weekend. You’re only learning about it on the Monday. It feels like it’s sort of running away from you. It’s really important to

Ben Atkin: to think that it’s not. You need to move quickly, but you need to move very deliberately, so as not to compound the damage, and as Francesca touched upon, if you are giving information to external

Ben Atkin: sources out of concern of trying to protect an image or protect anything else, you’re potentially causing additional liability and harm and headache.

Ben Atkin: To everyone involved, because you’re saying too much.

Ben Atkin: And that’s really why investigations are so important as well. You’ll notice that our governments, all 20 of them in the past 6 months, regularly lean upon the idea that there’s an active investigation, and I can’t

Ben Atkin: possibly preempt it, and we need to know what the outcome will be before we discuss it further. It works for a reason, it’s being looked at properly, and nobody really can say too much about that, and that’s why investigations are as important as they are, and why that’s something that we regularly offer here and talk about.

Ben Atkin: Having a communication strategy cannot be underestimated. Having something that is prepared and sent to stakeholders internally and externally when the time is right is really important.

Ben Atkin: The trick is to say as little as possible, really. It needs to be so vanilla that you’re bored reading it. And then in that way, you’re sharing just enough information so that you’ve…

Ben Atkin: You’ve shared what you need to share. I mean, you’ll notice there are some sorts of commonalities between the things that I’m saying, which is really…

Ben Atkin: Sharing information while sharing as little as possible is really the, the aim of the game here. You rarely want to be involved in

Ben Atkin: formal proper litigation because that is conducted in the public domain and will usually lead to

Ben Atkin: more discussion, more eyes on whatever the issue is, and things are always better addressed, behind closed doors and quietly and in a managed way. And that becomes much more difficult if there are, various

Ben Atkin: People who have a vested interest in discussing it, like the press, who, first and foremost, are interested in the sort of commerciality of it.

Ben Atkin: I think, social media is something that’s really important to talk about at this stage as well, because

Ben Atkin: That is the primary method by which people spread this type of information. I gave up social media a long time ago for this very reason. It’s sort of an occupational hazard that you can’t have the two together. I haven’t found that it’s…

Ben Atkin: proved it to be a detriment to my life at all. But having photographs and things, even in your own personal lives online, that are sort of readily available, is something that you should think quite carefully about, because if

Ben Atkin: God forbid something were to happen, those are images that can be grabbed, it’s information that can be sort of reverse engineered.

Ben Atkin: One of the stories I always delight in telling is that we once struggled, on a couple of occasions, in fact, have struggled to locate a harasser, to serve them with documents, and normally the avenue to find them has been that they have been regularly commentating their lives on social media.

Ben Atkin: and have taken a selfie in their bedroom next to an Amazon package. Now, we all agree that an Amazon package is a wonderful prop for a selfie, but it does also contain your address, and it doesn’t take much to sort of scan in. You don’t need the…

Ben Atkin: Incredible IT technology from a Hollywood movie to be able to scan in on a photograph to find an address. And and that’s really all it takes. So that’s sort of a sobering reminder just to be careful about that.

Ben Atkin: So this is really just about considering all of the different elements that we’ve already discussed today, both criminally.

Ben Atkin: in not prejudicing your defense. What can you say in that situation? What can an employer say? And also not prejudicing your position with your employer and your employer not putting themselves in a situation where the actions of one employee can lead to

Ben Atkin: the business falling over. I know that seems a bit fatalistic, but it is…

Ben Atkin: one of those sort of domino effects, where if something is not dealt with and addressed properly, those consequences can follow. The… it’s sort of a more of a distant memory now, but I think most of us remember

Ben Atkin: the Coldplay concert from a couple of summers ago, where two senior employees of an employer

Ben Atkin: were seen canoodling, and that just brought such heat to the company. I think the company did pretty well, really, in controlling the narrative and spinning it into a positive.

Ben Atkin: But it did bring up all sorts of feelings and concerns, which I’m sure generated internal investigations, suspensions, potentially not criminal allegations, but certainly things to think about of

Ben Atkin: how does the business survive this? When people were perhaps thinking that the business was condoning, you know, senior members of staff not providing safeguarding to their employees, and condoning adultery, and all of those sorts of things. These are…

Ben Atkin: One of the most difficult things to do in writing is gauge your audience, and an audience can be quite vast, depending on

Ben Atkin: On which room you’re in, so…

Ben Atkin: Things to carefully think about. So that in a nutshell are the Reputation Management Considerations.

Ben Atkin: I’m conscious that

Ben Atkin: Discussing Marcus’s Reputation and Wellbeing cuts across employment as well. Francesca, did you have anything you wanted to add?

Francesca Lopez: I think the I don’t really have anything to add. But the point for me to re-emphasize is the fact that the employer does owe duties to Marcus as their employee. So there is that duty to take reasonable care of his

Francesca Lopez: health and safety, including his mental health, both under common law and health and safety law. And there is also an implied duty of trust and confidence there, which is relevant too. So I think the employer does need to put in place

Francesca Lopez: a framework of support, not just for Marcus, admittedly, but also for other colleagues who might have witnessed the incident, or who may be interviewed by the police, for example, or involved in any kind of internal investigation.

Francesca Lopez: So I think that’s an important one to bear in mind, and it’s going to be a case of directing employees to the Employee Assistance Program, which I’ve already mentioned, or any other mental health support that the

Francesca Lopez: the employer has in place, and kind of signposting affected employees and Marcus himself to those.

Francesca Lopez: to those resources. So that’s a good practice from not only a duty of care perspective, but it also demonstrates to future tribunals or regulatory bodies, for example, if that’s relevant, that the firm took a holistic and a humane approach to what was a very difficult situation.

Ben Atkin: Good, thank you. Let’s pretend for a moment as we like to, that Marcus has been held in custody by the police and we don’t know how long he’s gonna be in the clink. What happens from an employment perspective in that scenario?

Francesca Lopez: So if Marcus is in custody, or kept on remand until he’s tried or sentenced, for example.

Francesca Lopez: then the employee shouldn’t be dismissed until the employer has carried out a fair and proper disciplinary process that complies with the relevant statutory test for what would amount to a fair dismissal. The ACAS guidance states that in circumstances where the nature of the alleged offence may not justify disciplinary

Francesca Lopez: action, so for example, off-duty conduct that doesn’t have any bearing on Marcus’s employment, for example, but the employee isn’t available to work because they’re in custody, then the employer should decide whether, in light of the needs of the business, needs of clients, that the employee’s job can be held open or not.

Francesca Lopez: And that doesn’t mean that having carried out an appropriate investigation, the employer can’t dismiss in the circumstances.

Francesca Lopez: Even where the employee is unavailable to work for a short period of time. It’s just that the employer has to consider whether or not the employee’s job can or can’t be held open.

Francesca Lopez: If a custodial sentence is imposed, that’s likely to frustrate the contract of employment. The individual isn’t physically going to be able to do their job. So in those circumstances, the employment contract is frustrated by operation of the law.

Francesca Lopez: Strictly speaking, that means there’s no dismissal in the circumstances. Their employment terminates, because.

Francesca Lopez: they can’t physically do their job, and they’re technically unable to bring a claim for unfair dismissal because they haven’t been dismissed. But frustration is normally accepted by the courts only where the frustrating event

Francesca Lopez: Genuinely renders all performance of the employment contract clearly impossible.

Francesca Lopez: So I think ordinarily, I would be expecting an employer to take disciplinary action in any event, and form a, decision on the basis of the evidence and the information it has available to it at that time.

Ben Atkin: Matt, any thoughts on the criminal side?

Matt Hardcastle: If it’s a question of a remand rather than a release on bail, so being held in custody while the final determination is being made.

Matt Hardcastle: then… the courts may…

Matt Hardcastle: take a different view if there’s a way to show that a remand will have an effect on someone’s employment, and or whether there are alternatives to employment that mean that bail conditions can be imposed that allay the court’s fears while still allowing the employee to work. So, to give a kind of very basic example.

Matt Hardcastle: if somebody’s arrested and the courts say, well, I can’t release you on bail.

Matt Hardcastle: to be allowed anywhere within the M25, because I’m so concerned about what you might do in the M25.

Matt Hardcastle: then what would be, potentially helpful is if an employer is able to say, well, you have the ability to work remotely, we can find a way for you either to work on a different site or something like that. It can… it can support a bail application, which can get the employee

Matt Hardcastle: released on bail and able to get back to their job. So it’s, again, it’s another example of the benefit from there being as open a flow of communications as possible.

Ben Atkin: That’s great, thank you.

Ben Atkin: We have one final slide for you, which is just a summary of the needs and employer’s role in this type of situation, which…

Ben Atkin: All scenarios will be unique in their own way, but I think this sort of covers

Ben Atkin: a general idea of what happens if an employee is involved in criminal activity.

Ben Atkin: Whilst that’s on the screen and everyone’s having a quick read, we promised a Q&A session and we also promised to stop the recording before that starts so that people can feel comfortable in just asking any questions that spring to mind. So that will bring an end to the recording. Thank you for everyone watching and for attending.