John Terry racist language case highlights a tricky area for employers

Unless you go out of your way to avoid all things football related, you’ll know that John Terry (defensive bulwark and captain of both Chelsea and England) faces a criminal charge of using racist language towards a fellow professional (Anton Ferdinand, defensive bulwark of Queen’s Park Rangers and, formerly, England Under-21s).

Dealing with an employee who has been charged with a work related criminal offence is a tricky area for employers. Although the nature of Terry’s job complicates matters, as with any other employer in this type of situation, Chelsea must still deal with the employment law aspects. Where an employee is charged with a work related criminal offence, the employer must decide whether to begin its own investigation or await the outcome of the criminal proceedings.

An employer is perfectly entitled to conduct its own investigation, but it must not impede the criminal proceedings. The employee might not want to cooperate, for fear of prejudicing those proceedings, although it is possible for the employer to warn the employee that, if he or she does not assist its investigation, it may take a decision on the evidence available. The fact of the charge won’t be sufficient to discipline or dismiss the employee - the employer will need to conduct its own investigation and form an honest and reasonable belief in the employee’s guilt before doing so. It’s important to note here that the burden of proof in criminal proceedings - beyond reasonable doubt - does not apply here, only the usual unfair dismissal rules.

One advantage of undertaking an investigation before the criminal proceeding have concluded is to resolve the employment situation more quickly. It can be several months before a criminal trial takes place, as in John Terry’s case. This may be important if the nature of the criminal charges could present problems in the workplace, for example where colleagues are fearful for their safety after an employee has been charged with an offence involving violence.

However, there are also good reasons why the employer might choose to await outcome of the criminal proceedings before dealing with the employment situation, aside from possible non-cooperation by the employee in any internal investigation. If the employee is found guilty, the employer may have more evidence on which to discipline or dismiss the employee; and if he or she is found innocent, that may be evidence that disciplinary action or dismissal is not warranted. If the employer chooses to wait for the criminal proceedings to end, it must decide whether or not to suspend the employee on full pay during this period - something that Chelsea have opted against in John Terry’s case, but which most of us would expect if we faced the same criminal charge.

XpertHR’s tribunal service provides some free-to-view examples of cases involving dismissal for criminal charges and convictions:

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Finally, subscribers can read our “how to” guide on dealing with an employee who has committed or been charged with committing an offence.