While you may be angry that your employee was locked up, you can't terminate his services just because of his arrest. You also can't treat him as a deserter who's 'fired himself' when you know why he hasn't been coming to work. Doing this will constitute to unfair dismissal, says the Labour Law for Managers Loose Leaf Service.
Here are the five situations where disciplining an arrested employee will be considered fair.
Disciplining your arrested employee will be considered fair in the these five instances
#1: Your employee was able to return to work after being released but, for no good reason, didn't.
#2: Your employee's crime brought the name of your business into disrepute.
#3: The employee's crime affected the trust relationship between the two of you.
For example, you run a security company and the arrested employee's wearing your company's uniform at the time he commits the crime and your company's name was clearly visible on the uniform and you can prove it.
#4: Your employee committed the crime while pretending to be acting on behalf of your business. This clearly affects the trust relationship.
For instance, you run an auditing company and your employee misuses the authority of your company's name to defraud one of your clients.
#5: Your employee's committed a crime against your business
For example, your accountant embezzles your company's money and goes to jail. If you hold a disciplinary hearing and prove him guilty, you'll probably be able to fire him. But the dismissal isn't for being in prison, it's for stealing your company's money.
The bottom line: If you want to dismiss your arrested employee for a crime that constitutes misconduct (like the examples above) you have to follow your normal disciplinary process. But, where you're dismissing for absence as a result of arrest, then the dismissal's for incapacity.
Remember, whether or not your employee's found guilty in the criminal court won't influence the verdict of your internal disciplinary hearing. This is because, in a criminal court, the accused must be proven guilty beyond reasonable doubt but, at a disciplinary hearing, guilt only needs to be proven on the balance of probabilities.
So you don't have to wait until your employee's found guilty by a criminal court. You can discipline him for a crime he's committed, which constitutes misconduct in the workplace.
It's crucial that you follow a procedurally fair dismissal procedure to avoid an unfair dismissal claim.
Knowing when discipline will be considered fair will help ensure you discipline your employee in a fair manner.