The recent criminal case of Gloucester rugby player, Danny Cipriani, has sparked concern amongst employers unsure of what they would do if an employee was charged or convicted of a criminal offence, employment lawyer Nick Rowe, has revealed.
Nick, a partner and head of the employment law team at Midlands firm Lodders, has represented a number of professional rugby players in disciplinary hearings before the RFU and sportsmen and sportswomen across many sports in a wider advisory capacity. He says:
“Local employers have admitted to being worried and confused over what they would, could and should do if one of their employees was to be charged and/ or convicted of a criminal offence like Danny Cipriani. Of course, would, could and should are all very different considerations.”
The England fly-half was fined £2,000 by his principal employer, Gloucester Rugby Ltd (Gloucester) after a nightclub incident in Jersey, as well as handed a £2,000 fine by magistrates after he admitted common assault and resisting arrest. Gloucester has also told Mr Cipriani to do ten hours of community service, whilst the Rugby Football Union (RFU) has charged him with ‘conduct prejudicial to the interests of the game’.
Cipriani’s case was in the spotlight within days of professional cricketer Ben Stokes being found not guilty of a criminal offence.
“It is understood that Ben Stokes’ contract contained a clause specifically stating he must not do anything that may bring the game into disrepute,” Nick explains. “Therefore, despite his recent acquittal, his conduct may still amount to a breach of contract.”
Nick says for employers concerned about what they should do if faced with similar issues with an employee, they should begin with reviewing the staff handbook and contract of employment:
“First ascertain whether criminal convictions and / or charges are covered in the staff handbook and/or contract of employment, check they are in line with the ACAS code of conduct, and follow the procedures.
“Most, well drafted, staff handbooks and/or contracts of employment will list the acts considered to be misconduct or gross misconduct, and may also include a tailored clause that the employee will not bring the game, profession or organisation into disrepute – points especially relevant to individuals in the public eye, including sportsmen and women.”
Dismissing an employee charged or convicted of a criminal offence is often the instant response of many employers, but Nick says employers should take their time:
“Employers would be well advised to exercise some restraint and ensure their reactions are measured, well thought through and reasonable. Being charged or convicted with a criminal offence does not, on its own, provide the employer with a right to dismiss the employee.
“Of course, criminal convictions can take many forms, and if there is a threat to the business, colleagues, clients or customers then arguably, the most sensible approach would be to suspend the employee, on full pay.
“Even if acquitted, an employee, could still be disciplined or subsequently dismissed from his or her employment if that is the outcome that is desired by the employer, and if that outcome is ‘reasonable’ when applying the quite different tests applied by an employment tribunal in such circumstances to that of the criminal courts,” he adds.
“The reputational damage and the breaching of social standards, especially when coupled with a fair and reasoned procedure, are likely to enable employers to justify any disciplinary sanction, including dismissal. Of course, with high profile sports people there are a number of factors to consider such as the impact on the status of the game, the opinion and appeal of the sport to the wider public and, of course, the appetite to keep the individuals in question ‘in the team’.”