You can't dismiss an employee just because he's been arrested. It's against his legal right to a fair disciplinary process and could land up costing you thousands for reinstatement or compensation, says the Labour Law for Managers Loose Leaf Service.
There are three situations you might have to face with an arrested employee. Here's how to deal with them.
You may have to deal with these three situations if your employee's locked up
#1: An employee who's arrested and locked up
Your employee could be arrested and locked up in a police cell pending a court hearing. This means he's been arrested but hasn't been found guilty or sentenced by a court. He also hasn't been put into prison. He's only being held by the police temporarily as a precautionary measure. Or he could've been refused bail, or been granted bail but can't pay the bail amount. He'd then be held in prison pending his trial.
In this case, if your employee's been locked up for an unreasonable period of time, it may be possible for you to dismiss him for incapacity.
As an employer, you'll then have to follow your dismissal process for incapacity.
Reasonable time will be determined by your operational requirements. For instance, your business can no longer operate without him.
#2: An employee who's been found guilty and released
If your employee's been found guilty and given a suspended sentence, fined or given community service and released. He isn't serving a prison sentence, but he's committed a crime and will have a criminal record.
In this case, you can dismiss an employee who has a criminal record if his criminal record affects your business and the trust relationship between you and him. For example, you think he might steal your stock.
#3: An employee who's been found guilty and imprisoned
This is when your employee's been found guilty in court, sentenced and put in prison. This means he won't be able to work until he's released.
Deal with this as incapacity. Remember, if an employee's arrested and locked up for an unreasonable period of time, you can dismiss him for incapacity.
Be warned: You can't just fire your employee for having a criminal record. You also can't fire him for not being able to work because he's been imprisoned unless you can show that, operationally, you can't keep the position open for him until he's released.
Knowing the three situations you'll face if your employee's been arrested will help ensure you deal with the matter in a legal manner.