Q: What should I do if an employee has been arrested?

A: First, and most important, don’t jump to automatically dismiss the employee; being arrested does not mean they have committed a crime. Before taking any action, you need to speak to them and find out what has happened.

Dismissing someone without further investigation is highly likely to be an unfair dismissal if the employee has two or more years’ service. And with the new government looking to make unfair dismissal a day-one right, this could soon apply to all employees, even the ones you are just getting to know.

If your employee is in custody, it may be some time before you can contact them. You do not have to pay someone for work missed while they are in police custody, however.

We’ve seen examples recently where the law and public opinion are not always aligned. For example, the BBC has come under strong criticism for not sacking the news presenter Huw Edwards once they were notified of his arrest in November.

A tribunal ruling in May, in J Difolco v Care UK Community Partnerships Ltd, highlights the risks of dismissing an employee suspected of criminal activity. A care assistant was charged with murder in October 2022. She was sacked, due to her employer’s concerns about reputational damage, and subsequently brought a claim for unfair dismissal.

The employment tribunal upheld the claim, stating that the company failed to properly investigate whether these charges could reasonably cause reputational damage to the organisation. The care assistant was acquitted in March.

While she had been charged, albeit not convicted, Huw Edwards was only charged recently. So if the BBC had sacked him in November, there’s a good chance it may have found itself using taxpayers’ money to defend itself and, potentially, pay out on an expensive lawsuit.

We have also seen examples over recent days amid the ongoing unrest and violence across the UK. Several of those arrested have lost their jobs after employers were tracked down and contacted via social media.

The impact on an organisation if an employee is involved in the riots can be very complicated, and employers will need to navigate this carefully. Some of the areas to consider include the effect on the wider workforce and clients, as well as reputational damage.

It’s likely that having an employee who has been arrested for potentially racially motivated violence will not go down well with colleagues. Employers need to consider not only how they manage the individual who has been arrested, but also how they deal with any conflict between employees who have different political views and how they support anyone affected by the events.

That does not mean employers cannot dismiss someone for reasons of reputational damage. Employment law sets out five fair reasons for dismissal, and misconduct is only one of them; there could also be another “substantial reason”. The legal test for deciding whether this is fair is whether the employer followed a fair process and acted reasonably in reaching the conclusion to dismiss.

If it turns out that the crime committed by the employee means they are not fit to continue in their role with you — for example, if it is the finance director and they are convicted of fraud, or a delivery driver who has been arrested and charged with driving under the influence of alcohol or drugs — then dismissal is likely to be fair, provided you follow the correct procedure.

If your employee is convicted and sentenced to prison, you might assume that you can automatically dismiss them. But, again, the employment contract will not automatically terminate because someone is imprisoned. As with all dismissals, you need to follow a fair procedure before confirming this.

Peter Done is co-founder and managing director of Peninsula, an employment law, HR and health and safety advice specialist