It is not as uncommon as perhaps you might think – getting a call on a Monday morning from an angry sounding spouse or housemate – Dave’s been arrested again.

What’s he done now?

Nothing, honestly! Wrong place, wrong time. There is an explanation, honest!

Take it from me, there is almost never a good explanation and being in the wrong place at the wrong time was usually their own doing. So, I sound cynical?

As with all employment law processes, the key is not to overreact. Sometimes it is a mistake or a case of mistaken identity, and so it is important to ensure that we follow a fair process.

That said, being able to take robust action when you need to is key. Having a basic understanding of the police process is also important.

Someone can only be arrested if they are caught actually committing an offence or if the police have a reasonable suspicion of them committing it, or where the offence has been committed and there is a reasonable suspicion that they are the person who committed the offence.

The police have the power to arrest anywhere, including on the street, at home or at work. It is also a requirement for the police to tell the individual what they are being arrested for.

Therefore, if Dave tells you he has no idea ‘what he got picked up for’, chances are he isn’t being entirely truthful with you.

Some other gems that my clients have been told:

‘I didn’t know I was being arrested, I wasn’t put in handcuffs’- not true – someone can still be placed under arrest without handcuffs and the requirement to tell someone they have been arrested and what for still stands. Handcuffs are irrelevant.

‘I was only arrested to give evidence for another enquiry, it isn’t me that has done anything wrong’ – not true- if someone is arrested the police have a suspicion, they have committed a crime. If someone is needed as a witness and are not under any suspicion, they are highly unlikely to have been arrested.

‘It was a case of mistaken identity; I was released the same day’- this COULD be true; however, it is unlikely. Wrongful arrest is extremely serious and can result in significant consequences for the police.

Arrest vs Charged

Someone can be arrested and not charged. Being charged is where the individual is given a ‘charge sheet’ of what they have been charged with and this is usually when the CPS have decide that there is sufficient evidence to take the matter to Court.

However, a minor offence can be dealt with at the police station without going to Court,

Someone can also be released but under further investigation. If someone is released under investigation there is no obligation to attend the police station again, unless they are arrested or agree to return voluntarily for interview.

If someone has been arrested and are released on police bail, this can be before or after they have been charged. Bail can carry conditions around things like who they individual speaks to, where they can go and leaving the country. They may also have had property seized.

If someone is remanded in custody, it is likely that they are suspected of something very serious, and the person will be in prison either until trial or pending further procedural steps.

What can the employer do?

If Dave eventually turns up for work, a few days later- ready with his ‘I didn’t do it, it was all a mistake’ story, the following are likely to be useful steps:

• Call him into a meeting and ask in his words why he was not in work.

• The leave is currently classed as unauthorised, and an investigation separate from the police may be opened.

• Ask him what he has been accused of and what his story is (he may not tell you if his solicitor has advised him not to!)

• Ask if he has been charged and if so, ask for the charge sheet.

• If he was arrested, ask for the circumstances of it (this will often tell you quite a lot- was he attending a pre- booked appointment with the police and arrested calmly at the station, or was there a dawn raid on his house and he was dragged out in front of the neighbours….)

• Does he have any further ‘appointments’ with the police and has he been given any court dates?

• Will he provide you with his solicitor’s details (he may have been given duty solicitor at the station) and the details of any liaison officer that he has been provided with?

• Has any company property been seized, if so what, and in relation to which allegations.

These enquiries will help you to understand what an employee is being accused of, where they are up to in the police process and also what the potential implications for your business are. You can also contact the police and ask them relevant questions, they may choose not to respond to some, but it is always worth asking!

To Suspend or Not to Suspend?

Firstly (and this may affect your decision), suspension is typically on full pay.

If you decide you want to suspend, you need to have reasonable grounds for doing so. ‘My employee was arrested’ is not enough.

For what reason do you need to keep them away from work? If it will interfere with the police investigation by having them in work (or your own investigation) you could take the decision to suspend.

If, the terms of their bail prohibit them from attending the workplace, slow your finger on that suspension trigger. Firstly, if an employee is unable to attend work or complete their duties there is an argument that they can be on unpaid leave from work, rather than specifically suspended.

Their role is available, and you are able to make work available, but through their own circumstances they are unable to attend, this does not necessarily give them a right to suspension or paid leave. If you were keeping them away from work (for example if the building they would normally work in had a health and safety issue and you had to require people to stay away from work and they couldn’t work remotely, you would have to pay them. Where the circumstances are down to the employee, there is scope for such periods to be unpaid.

It is a complex area and worth taking legal advice on, but don’t be in a hurry to necessarily suspend immediately simply because you are not sure what else to do with an employee.

Can I fire them?

If an employee is accused of something horrific, the instinct is to want to protect your business, your reputation and your employees. However, simply because someone is arrested for a serious offence does not give you a free reign to dismiss.

You still have to follow a fair process and ensure that you are dismissing for one of the five potentially fair reasons.

In circumstances involving arrest this usually comes down to conduct or SOSR (some other substantial reason), however again this is a complex area and you should always take advice in such circumstances to ensure that you are following procedures that are compliant with employment law.

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