Criminal Law & Work

Many employers are under the impression that they have the automatic right to dismiss an employee where a criminal offence has been committed. However, this is not always the case. Two common examples are where immigration laws are breached, and where a driving offence has been committed.

The case of Kelly v University of Southampton (2007) highlighted this issue. The university had employed an American lecturer after she had obtained permission to work and live in the UK. Unfortunately (and rarely) her permission to live in the UK expired before the expiry of her right to work in the UK. She was left in a position whereby she had permission to work in the UK, but not to live in the UK. The university (wrongly as it turned out) believed that it would be committing a criminal offence by continuing to employ her. As a result, the employee was dismissed.

An Employment Appeal Tribunal held that Kelly had been unfairly dismissed. There were two reasons for this. Firstly, the University still had permission to employ her and was not actually committing a criminal offence by employing her (bear in mind that immigration rules have changed since this decision was made). Secondly, and most interestingly, the tribunal confirmed that there is no automatic right to dismiss even where a criminal offence has been committed. The University had failed to follow the full dismissal procedure and had not allowed Kelly the right to appeal. Perhaps the tribunal’s decision was largely influenced by the fact that had Kelly been given the right to appeal, she would have had time to get her visa extended.

The Tribunal stressed that any decision to dismiss must be reasonable in all the circumstances. Therefore, where a business is contemplating the dismissal of an employee due to a breach of criminal law it is important to take all the circumstances into account and consider whether it is reasonable to dismiss.

This is especially relevant where an employee is convicted of a driving offence. A dismissal is likely to be unfair if the employee does not drive as part of their job and where the conviction is fairly minor. However, if the job requires a lot of driving and the conviction is serious, a tribunal is more likely to consider a dismissal to be fair.

In practice this case demonstrates the importance of finding out all the relevant information and considering how the situation could be resolved. In immigration cases, it would be wise to establish whether the employee could get their existing visa extended or apply for a different type of visa. In the event that it does result in a tribunal case, a business will be well placed to defend a claim if there is a good paper trail showing that attempts were made to help the employee comply with the immigration laws.