As practitioners, we are regularly asked to advise employers in relation to the risks of dismissing an employee when they become aware of an employee's criminal conviction. There can be an assumption that exiting an employee with a criminal offence should be a straightforward matter but this is simply not the case. 

If the employer wants to dismiss the employee from the business for a single incident of misconduct, they must do so by way of a gross misconduct dismissal. The burden of proof on employers to establish that there was no option other than to dismiss the employee is high. In making an adjudication, the Workplace Relations Commission ("WRC") will assess whether the decision to dismiss was "within the band of reasonableness" based on the particular facts.

Historic Convictions 

If an employer becomes aware of a historic conviction there are limited options available to them from a disciplinary perspective. Given that Garda vetting is only available in respect of employees dealing with children and vulnerable persons, an employer can only ascertain whether an employee has a criminal conviction by including this question on a job application form. The introduction of the Criminal Justice Spent Convictions and Certain Disclosures Act 2016 allows employees to withhold information in relation to a spent conviction. A conviction is deemed spent if seven years have passed since the effective date of the conviction and if the individual was 18 years of age at the date of the commission of the offence. There are a limited number of excluded convictions. There is a duty to disclose where specified work or relevant work are concerned but this only relates to activities involving children and vulnerable persons. Once a sentence is deemed to be spent there is no obligation on an employee to disclose it to their employer. If such a spent conviction comes to an employer's attention the ability to discipline an employee is limited unless they can establish that the conviction is causing or will cause damage to the business. 

Current conviction with sentence imposed

The non-availability of the employee for work as a result of a custodial sentence can be somewhat helpful from the employer's perspective as they can argue that the contract has been frustrated in circumstances where the employee is simply not available for work. However, as demonstrated by the case of Muiris Flynn v Iarnrod Eireann ADJ-00030195/22 it is still necessary for the employer to apply fair procedures in disciplining the employee. In this particular case, the WRC refused to accept the employer's frustration argument and found that the conviction (which resulted in a four year custodial sentence with the final 30 months suspended) must result in such a change in the obligation that if performed, it would be something different from that contracted for. It also highlighted that an employer needs to consider all factors in determining whether frustration occurred. This would include the length of time which the employee is likely to be away from his role, the necessity of obtaining a replacement and also recommended consultation with the employee in these situations.

It may also be open to an employer to argue that the conviction has resulted in a breach of the terms of that employment contract if, for example, the conviction results in an employee losing his driving licence, if this is a precondition to employment. In order to rely on this argument such pre-conditions to employment should be clearly addressed in an employee's contract employment and any related policies. The employment contract should also set out any actions which are deemed to be gross misconduct which would often include criminal convictions other than minor driving convictions. 

In the High Court case of Lorcan Delaney v Aer Lingus (Ireland) Limited [2021] IEHC 72 an injunction was sought to prevent the dismissal of an employee who was refused renewal of his airport identification card (which he needed for this role) after having been charged with (but not found guilty of) drug possession. The employee chose to take his claim to the civil courts rather than the WRC. Injunctive relief was refused on the basis the employee had failed to establish his case was likely to succeed at the hearing of the action. The employee argued that his contract did not expressly require him to have a current AI Card but this was rejected because it was an existing legal requirement. If this case had been taken before the WRC there may have been a different outcome but it is a clear reminder of the importance of clearly defining pre-conditions to employment and any actions which may constitute gross misconduct. 

Suspended Sentence 

The most difficult situation arises if a suspended sentence is imposed on an employee which does not prevent the employee from working, but which the employer believes will cause reputational damage to the business. 

Current case law supports the position that an offence committed outside of the workplace can justify termination but the employer must prove there is connection to the employee's work or work environment. The key case of Crowe v An Post UD1153/2014 sets out the factors that should be considered before an employer makes a decision to dismiss on foot of a conviction.

These include:

• whether the conduct risks bringing the employer into disrepute or may cause reputational or other damage to the company 
• whether the employees offence makes them unsuitable to continue in their role and the employer has lost trust and confidence in the employee 
• whether the dismissal is more likely to be fair and defensible if the conviction is reported in the media

The burden of proof will be on the employer to establish that there is a sufficient connection between the conviction and the contract of employment in order to defend an unfair dismissal claim. 

The following facts have been taken into account by the WRC and EAT in evaluating whether a dismissal is within the band of reasonableness:

• whether the employee notified the employer of the conviction and what stage was that notification made
• the type of conviction or offence 
• whether there was a delay between the notification and the disciplinary action commencing 
• any link between the conviction and the employment relationship 
• whether the conviction will frustrate the employees obligation to work
• whether the employer considered sanctions short of dismissal

The very recent case of Muhammad Kashif v Aldi Stores Limited (Ireland) ADJ-00045886/24 clearly demonstrates the application of these principles. In that case an employee was awarded two months' gross wages for his dismissal based on a criminal conviction. The worker had received a two-month suspended sentence having plead guilty to sexually assaulting a female colleague in his previous employment. The employee was dismissed when his employer discovered this conviction reported in print media. During the course of the hearing it transpired that the employee had notified his manager of the conviction at the time and was allowed to continue working. Conviction of any criminal offence (other than a minor motoring offence) or failing to disclose a conviction to your line manager was identified as misconduct in the employee's contract.  The employer argued that the dismissal was proportionate because the conviction was sufficiently connected to the employment, the employee was in a public facing role working alongside female colleagues and that future litigation was foreseeable. The employee's complaint was upheld but the award was reduced by fifty per cent due to the employees contribution to his own dismissal. 

In making this determination the WRC focused on a number of facts in particular the delay of eight weeks by the employer in taking action, the lack of demonstrable damage to the employers business (no queries were raised by staff or customers on foot of the media coverage), the fact that the employee was still capable of fulfilling the role and no incidents had occurred since the conviction and the impact of the dismissal on the employee. 

Considerations

It is clear from these cases that successfully defending dismissals on foot of criminal convictions can be complex. 

Employers should take the following steps to ensure that they are in the best possible position to justify such dismissals: 

• Gross misconduct should be clearly defined in the contract of employment and relevant policies. 
• Actions within or outside the business which can impact the reputation of the employer should be categorised as gross misconduct. 
• Preconditions to employment such as continuing to hold a driving licence should be addressed in the relevant contracts of employment and in the relevant policy.
• Employees should be required to notify the employer of any criminal conviction, with failure to do so resulting in disciplinary action. 
• Training should be provided to management in relation to addressing this issue on the ground.
• Any inquiries by members of the public in relation to a convicted employee should be escalated. 
• Any disciplinary action taken on foot of notification of a criminal conviction should be addressed quickly. 
• The necessity to suspend the employee should be fairly evaluated.
• If a decision to dismiss is made, the reasonableness of that decision should be addressed clearly in the dismissal letter pointing to the relevant policies and the impact on the business which should be clearly demonstrable.