How Employers Can Deal With the Problem Employee (and Avoid Costly Employment Law Claims)

 

problem employee

There’s a lad from outside Mullingar who has a peculiar way of making a living.

I’ll tell you about that another time, though.

Because last week he paid me a visit on different business: the common problem of the “problem employee”?

How do you handle this familiar problem?

Many employers come to me with a massive sense of frustration, sometimes anger.

Their emotions range from a sense that employment law in Ireland is loaded in favour of the employee, to fear of taking any action for fear of a costly claim to the WRC or Court from the employee.

What can you do if an employee is misbehaving or demonstrating a bad attitude or failing to perform or is guilty of misconduct or is forever missing days or guilty of persistent poor timekeeping?

Or is a liability or just not right for your organisation?

Or is he on the fiddle?

Small employers, without the benefit of trained HR professionals in their business, are often frozen with fear and indecision.

Quite frankly, they don’t have a clue what to do or what they are allowed to do to handle a problem employee.

Some employers take a metaphorical lump hammer to the problem; others take the approach of “being nice and hoping for the best”.

Neither of these approaches are recommended, quite frankly.

The Options

Firstly, you need to be mindful of a certain critical time period: 12 months’ employment or “one year’s continuous service”, according to the Unfair Dismissals Act, 1977.

Generally, an employee can only bring a claim for unfair dismissal when he/she has one year’s continuous service in the job. There are exceptions, for example, a dismissal on a discriminatory ground, or a dismissal because the employee has made a protected disclosure (Protected Disclosures Act, 2014).

By and large, though, the employee needs a year’s service.

So, if an employee is not working out, or is simply not right for your organisation, the contract of employment can be terminated.

Over one year’s service?

If the employee has more than one year’s service it is more problematic for you as an employer. The employee has more protection by virtue of the Unfair Dismissals act, 1977.

It provides that an employee can only be dismissed on specified grounds, provided there are substantial grounds justifying the dismissal :

  • Capability, competence, qualifications
  • Conduct
  • Redundancy
  • Illegality
  • Other substantial grounds

To dismiss on one of these grounds you need to ensure all your ducks are in a row; this article which I have written in the past about how to legally dismiss an employee should help.

You do need, however, to afford fair procedures and natural justice to the employee in terminating the employment as these are constitutional rights.

There is one further situation that arises: frustration of the contract. This could arise where an employee becomes ill or suffers an injury that makes it impossible for him/her to do the work. In other words, the employee is unable to fulfill his/her obligations due to incapacity.

It is said, then, that the contract is at an end as it has been frustrated.

Practical examples

Let’s look at some practical examples.

“Susan” is a secretary/receptionist in a medical practice. Her attitude is poor, her absenteeism rate is high, her work is poor, and worst of all, she has plenty of “sass” going on in her interaction with her boss because her boss is a non national.

If she has over 12 months’ service, the option for you as employer in this situation is to manage the situation professionally. You would use a performance improvement plan and/or the disciplinary procedure to let Susan know that her performance and conduct is unacceptable and will have to improve.

You would ensure to afford her the full benefit of your disciplinary procedure and ensure she is aware that improvements are required and if they are not forthcoming the sanctions set out in the disciplinary procedure will be imposed.

If she does not have 12 months’ service and is on probation either because she is in her first 6 months’ of employment or she has had her probation extended, her employment could be terminated.

“Gianluca” is a part time employee but appears to be angling to bring some sort of claim against you. He has already suffered a minor injury-back problem- as a result of lifting some stuff in the store room.

He’s due back to work shortly after his injury and his solicitor is writing to you about accepting liability for Gianluca’s injury. You have observed him carefully for a couple of years now and you know he is just gagging to quit the job and bring some sort of claim to the WRC (Workplace Relations Commission).

You are, quite frankly, walking on eggshells.

What to do? Firstly, report the personal injury suffered in the workplace to your insurer, if you have not done so already, and let the insurer deal with it.

Secondly, when he does come back, deal with him professionally, just like Susan above. Provided you respect the laws and don’t act unlawfully, you have nothing to get overly anxious about.

You do need to ensure you are giving him his correct rest breaks, holiday and public holiday entitlements, and all other employment obligations.

But once you are satisfied you are doing so you need not worry excessively.

The laws are not completely imbalanced or stacked against you, and you have rights too. It’s a myth to say otherwise.

For example, at its most basic Gianluca needs to perform in accordance with the contract of employment, and follow reasonable directions of you as employer and any of his line managers.

Even the Supreme Court held earlier in 2017 held that every wrong that an employee suffers in the job does not give rise to a claim or a legal cause of action.

So stay calm. The dice is not loaded. There is no need to act on any fleeting impulses you might have to take him into a darkened room and teach him a lesson!

Fianlly, Paul is a blocklaying contractor and Jimbo, one of his lads, is threatening to drive him around the bend. He is frequently missing from work, just texts that morning or the eveing before and says he won’t be in.

At this stage paul is getting suspicious that Jimbo is working for someone else a couple of days a week, as it seems to be the same days he is missing all the time.

In any event, the response from Jim should be the same as for Gianuca and Susan: invoke the disciplinary procedure after having the chat/some informal counselling with Jimbo to let him know the rate of “no shows” is unacceptable.

You will see that all these problems can be resolved in a professional way with no undue concern for claims against you, provided you stay calm and deal with the issues coolly and calmly.

Conclusion

Employment law is fundamentally based on the contract of employment.

If you go back through the centuries there was a “master/servant” relationship. If you fast forward a few hundred years there still exists a huge disparity in power between the employer and employee in negotiating a contract of employment.

Generally, it’s a case of, “take it or leave it”.

So statute law such as the Unfair Dismissals Act 1977 and the Organisation of Working Time Act, 1997 were introduced by legislators to protect employees and redress the inherent imbalance in equality of arms between employer and employee.

That’s all that’s happened.

So, if you are an employer, stay cool, abide by the laws and you won’t need to worry excessively about the whole shooting match being loaded against you.

Disciplinary Procedures in the Workplace-3 Interesting High Court Decisions About Fair Procedures

fair procedures high court

Are you an employer or employee involved in a disciplinary procedure in the workplace?

If you are you need to be clear about the rules that should apply to such procedures, including at the investigatory stage and the ultimate disciplinary procedure where a sanction may be imposed.

The High Court has recently handed down three decisions in relation to internal investigations and disciplinary procedures in the workplace.

And, unfortunately, the principles that you would like to be crystal clear about in relation to carrying out a disciplinary procedure in the workplace are not entirely settled.

Let’s take a look at the three cases, all of which are dealt with in the High Court over a short period of time in the first part of 2017, and you will see what I mean.

The first case is Lyons v Longford Westmeath Education and Training Board . Mr. Lyons is a teacher with the Longford Westmeath Education and Training Board and certain allegations were levelled against him. The employer engaged the services of an external HR company who carried out an investigation into the allegations.

However, the HR company went further than merely carrying out an investigation-it also issued a report, presumably because they were requested to do so by the employer, and found against Mr. Lyons with respect to the bullying allegation made against him.

Mr. Lyons then brought an action in the High Court arguing that

  1. He should have been allowed legal representation during the investigation, and
  2. His legal representative should have been allowed to cross examine any witnesses.

The High Court held in his favour, which surprised many observers as it was generally understood that the full panoply of fair procedures and natural justice need not be afforded in the preliminary investigation stage of a disciplinary procedure, and it was sufficient if the employee had representation and could cross examine at the disciplinary hearing stage where dismissal was a possibility.

What distinguished this case from others, perhaps, is the fact that the investigation resulted in a report being issued and an adverse finding against Mr. Lyons. If the investigation simply investigated the allegations and decided whether there was a case to answer or not, and stopped there, then Mr. Lyons it may have been held by the High Court that he was not entitled to legal representation and to cross examine witnesses.

Justice Eager held, inter alia,

It is quite clear to this Court that the proceedings adopted by Graphite Recruitment HRM Ltd. is in breach of Article 40(3)(1) and (2) of the Constitution of Ireland by the refusal to allow legal representatives to appear on behalf of the applicant. The processes adopted by Graphite Recruitment HRM Ltd. failed to vindicate the good name of the applicant, in their refusal to hold an appropriate hearing, whereby the applicant through solicitor or counsel may have cross-examined the complainant..Equally, the complainant ought be entitled to then cross-examine the applicant.

 

And

The Court is clear that in circumstances where a complaint is made which could result in an individual’s dismissal, or where it impinges on the individual’s right to a good name, the individual is entitled to fair procedures, as outlined by the Supreme Court in the case law quoted above.

The second case worth looking at is E.G. v The Society of Actuaries in Ireland.

E.G. was an actuary and there was allegations against him of wrongdoing. The Society of Actuaries in Ireland, in responding to the complaints against E.G., set up an investigative committee who were to investigate the allegations and decide whether he had a case to answer, that is, whether there was prima facie evidence of wrongdoing.

The committee found there was prima facie evidence of wrongdoing and E.G. then sought an order from the High Court that he was entitled to natural justice and the finding of the committee should be set aside.

In this case the High Court decided that as the committee was only in the preliminary stages of a procedure involving an investigation, and did not have the power to make adverse findings against E.G., and the full panoply of fair procedures and natural justice was not necessary. It would only be in the formal disciplinary enquiry, where E.G. may have serious adverse findings made against him and sanctions imposed, that he would be entitled to legal representation and to cross examine witnesses.

The Court made a clear distinction between the preliminary investigation and the later formal disciplinary procedure.

The High Court relied on a High Court case, later upheld in the Supreme Court, involving the Law Society of Ireland, O’Sullivan v Law Society of Ireland [2009] IEHC 632.

 

Justice McDermott held:

In the courts view it was not necessary for the first named respondent to afford to the applicant the full panoply of natural justice rights in the course of any investigation into his conduct (outside of and/or in parallel with, any s. 8 or s. 9 process that may also have been underway) prior to their invocation of s. 17. They were of course, obliged to treat him fairly but they were entitled to adopt less formal and more abridged procedures than in circumstances where s. 17 had actually been invoked.”
85. The Supreme Court in dismissing an appeal against the judgment of Edwards J. [2012] IESC 21 was satisfied that the full panoply of natural justice rights does not inexorably apply at every phase of an investigative process. An appropriate standard of fair procedures must be applied at all stages of a tiered process. There may be situations in which a stronger degree of procedural protection may be required having regard to the decision to be taken at an investigative stage or its potential consequences.

 

And

A full oral hearing will be required before the Disciplinary Tribunal following the referral in the course of which the full panoply of rights will be available as set out in the Scheme as already described.

 

The third case was also, like Lyons above, in the education sector, N.M. v Limerick and Clare Education and Training Board.

The teacher in this case sought an injunction preventing the employer from carrying the disciplinary procedure to a conclusion. The Court considered whether the employee would have been entitled to cross examine witnesses at the investigation stage, even though this stage had already completed by the time the case came to the High Court.

Even though the investigation was tasked with making findings of fact the High Court found that because it could not make findings of fact which were final or binding, that is, the findings were only made as part of the investigation stage of the procedure.The Court held therefore, that the employee was not entitled to the full range of fair procedures/natural justice.

It also held that, therefore, that he was not entitled to cross examine witnesses and reiterated the principle arising from O’Sullivan v Law Society of Ireland [2009] IEHC 632 that the full range of fair procedures and natural justice is required at the disciplinary stage of the procedure, and not earlier in the investigation.

Conclusion

It remains to be seen whether the decision in the Lyons v Longford Westmeath Education and Training Board case is followed or not. From an employers perspective it seems to be a prudent course of action to ensure that the investigation that is carried out does not make final binding findings of fact and is strictly a fact finding exercise, and leaves final binding findings of fact to the disciplinary stage of the procedure.

My Single Best Tip for Employers

small employer ireland

The first time I met Séamus he was a worried man. Séamus is a small employer, with just a handful of employees.

But he had to let one of them go recently because he just wasn’t working out. His attitude was disastrous and Séamus could not see how their relationship could be a happy one.

In fact, he could only see it ending badly.

And that’s exactly what happened on a wet Monday morning a few weeks before Séamus came to see me.

 

Are you an employer?

Are you concerned about the possibility of facing an costly claim for unfair dismissal?

Recently, I wrote an article, “My Single Best Tip for Employees”.

In this piece, I want to give you, as an employer, my best tip to protect yourself in relation to unfair dismissal claims, and how to ensure you are not stuck with an employee who is just not right for your organisation.

Let’s take a look, shall we?

My tip for employers is almost the exact opposite of my tip for employees.

Let me explain.

My tip for employees was to try to ensure that he got 12 months’ continuous employment under his belt, if at all possible. This was to ensure the employee could avail of the remedies provided by unfair dismissal legislation in Ireland, particularly the Unfair Dismissals act, 1977.

My tip for you as employer is to ensure this does not happen, unless you are absolutely satisfied that you are happy with the employee and they are right for your business.

The best way to do this is by a robust, comprehensive probation period clause in the contract of employment.

This clause should make a number of provisions, and I would recommend the following:

  1. The probation period would be for an initial 6 months, but you would have the right to extend it to 11 months, if needed. This gives you a full 11 months to ascertain whether the employee is right for you or not.
  2. The full rigours of the disciplinary procedure will not apply during the probation period; I would still recommend fair procedures and natural justice if you are going to terminate, but you would provide that the full disciplinary procedure need not be afforded during probation.
  3. The notice period during the probation period would be one week; if you do not spell this out you run the risk that whatever notice period stipulated in the contract will apply-this could be one month or three months and it would be strongly arguable, in the absence of the one week provision, that the employee is entitled to one or three months’ notice. Even if you did not require the employee to work the notice period, you would still be on the hook for payment of wages in lieu of notice.

It is widely accepted that an employee can be dismissed during the probation period. In fact, the purpose of the probation period is to allow the employer see if the employee is “the right fit” for the organisation.

It is critical, therefore, that you have as much time as possible to make that decision, but thtat you make it before the employee has 12 months’ continuous service and the protection of the Unfair Dismissals Act, 1977.

Bonus Tip #1 for Employers

If you are going to terminate an unsuitable employee don’t leave it too late-remember that the termination date is the date when notice expires, not when it is given.

If, for example, you have an employee working for 50 weeks and you give her a months’ notice of termination she will have the necessary period of continuous employment to bring an unfair dismissal claim.

Bonus Tip #2 for Employers

I would recommend that you always go through some form of fair procedure before terminating, even if the employee is on probation.

If the employee has over 12 months’ service you need to afford the full rigours of your disciplinary procedure before terminating the employment.

How Safe is Your Workplace Investigation From a Costly Outcome?

fair procedures

It happens the best of us, you know.

The botched workplace investigation

Do you worry about the disciplinary procedures in your workplace?

Have you been told about the eye watering, stomach churning awards when the inevitable unfair dismissal claim comes on for adjudication?

Let’s be honest.

A badly executed workplace investigation can prove to be a costly affair. It’s vital that it is carried out properly to prevent claims for unfair dismissal, and other causes of action.

Statutory Instrument 146/2000 gives us a statutory Code of Practice for Grievances and Disciplinary Procedures.

However, it sets out the broad principles which should be applied in a disciplinarily procedure.

But the mechanics of carrying out the investigation fairly have led to frequent challenges from the employee, claiming that they have not been afforded fair procedures or natural justice.

Basic fair play.

Such challenges have been the subject of consideration by the employment related fora, such as the Employment Appeals Tribunal, Labour Court and Workplace Relations Commission, and the Courts.

The High Court has adjudicated in many disputes surrounding employment related matters such as breach of contract, applications for injunctions, and the procedure which was used to dismiss an employee.

Let’s take a look at some of those High Court decisions and see what we can learn from them, shall we?
Let’s face it: if you are carrying out your investigation and/or disciplinary procedure in accordance with the findings of learned Judges of the High Court you are going to be on pretty solid ground.

Patrick J. Kelly v Minister for Agriculture, Fisheries and Food, Minister for Finance, The Government of Ireland, Ireland and Attorney General

This is a December, 2012 decision involving a harbour master in Killybegs who was dismissed from his position by his employer. Read the full decision here: [2012] IEHC 558 .

One of the interesting findings in this case by J Hedigan was that the the full range of fair procedures do not apply at the investigative stage.

There is no fixed model for fair procedures that is applicable to all circumstances. What is required in one instance may differ from another. In National Irish Bank and the Companies Act 1993, l.R. p. 145, Shanley J., subsequently upheld by the Supreme Court, dealt with an investigation by inspectors which was a two stage one. The first was an investigative stage, the second a hearing stage. In distinguishing in Re Haughey [1971] I.R. 217, Shanley J. at p. 168 held that at first stage, the inspectors could not be compelled to produce documents to the respondent nor was he entitled to any documents or to the facility of cross-examining any person at the initial stage.

“I am satisfied that there is no entitlement to invoke the panoply of rights identified by the Supreme Court at the information gathering stage of the inspector’s work. The procedures identified by the inspectors following the outcome of the first stage accord in my view with the requirements of fairness and justice and guarantee, where appropriate, the exercise of the rights identified in Re Haughey.”

I gratefully adopt this dictum of the late Shanley J. It is fairness and justice which is to be sought in any investigative process and it is to the process as a whole that the Court must look to determine if those basic requirements were met. The requirement of fairness and justice will vary from case to case.He further found that there cannot be bias, either subjective or objective, where there is no adjudication.

He also found that the requirement of fairness will vary from case to case.

In summary, the rules of natural justice do not apply where it is a pure investigation and there are no findings arising from it. Nevertheless, it is still advisable to afford natural justice and fair procedures.

And if the investigator is allowed to make findings then the rules of natural justice should be applied.

This decision, and J. Hedigan’s findings, is encouraging from the perspective of a small employer with limited resources. It recognises that the circumstances of each case should be looked at when assessing the granting of fair procedures and natural justice.

EAMON O’BRIEN v AON   INSURANCE  MANAGERS  (DUBLIN) LIMITED

Read the full decision here: [2005] IEHC 3

J. Clarke found:

Even if there are infirmities in the methodology of the investigators (and I express no view on that issue) and even if those infirmities may have affected the contents of their report the fact remains that the recommendations of the report do not, in the words of Kearns J. in Morgan “amount to a sanction” and therefore Haughey rights do not arise.

Clarke’s reference in the extract above to the Morgan case is the case of Morgan v. Trinity College [2003] 3 IR 157, which is well worth a read in any consideration of the law as it applies to investigations and disciplinary procedures in the workplace.

Giblin v Irish Life & Permanent PLC [2010] IEHC 36

Read the full decision here: Giblin v Irish Life & Permanent PLC [2010] IEHC 36

J. Laffoy stated:

First, in conducting a process to determine whether the plaintiff should have a serious sanction, including the most serious sanction available, namely, dismissal, imposed on him, the defendant must act in accordance within the terms of the plaintiff’s contract of employment, including the implied term that the plaintiff, as employee, is entitled to the benefit of fair procedures (Glover v. B.L.N. [1973] I.R. 388). However, it is well recognised that what fair procedures demand depends on the terms of the plaintiff’s employment and the circumstances surrounding his proposed dismissal (Mooney v. An Post [1998] 4 I.R. 288).

It is not to be inferred from this decision that I consider that it is not appropriate for executives of the defendant who are involved in the human resources aspects of the defendant’s management to conduct the type of investigation which was conducted in relation to the plaintiff. Nor is it to be inferred that I am of the view that the person or persons who conduct the “thorough investigation” to be conducted under para. (iv) of the Disciplinary Procedures in all cases should not be the decision maker as to whether the conduct of the employee being investigated warrants a serious sanction such as dismissal. A one stage inquisitorial process may be appropriate in many cases.

It is worth noting that J. Laffoy considered that A one stage inquisitorial process may be appropriate in many cases.

Mooney v An Post [1998] 4 IR 288

In this case, J. Barrington held that the principle of “nemo iudex in causa sua” (nobody is a judge in his own cause) did not apply in all situations, especially employment situation where the employer judges the issue and is clearly an interested party.

“The terms natural and constitutional justice are broad terms and what the justice of a particular case will require will vary with the circumstances of the case. Indeed two of the best known precepts of natural and constitutional justice may not be applicable at all in certain circumstances. As the trial judge has pointed out the principle of nemo judex in sua cause seldom applies in relation to a contract of employment where the employer judges the issue and is an interested party. Likewise it is difficult to apply, to a contract of employment, the principle of audi alteram partem which implies the existence of an independent judge who listens first to one side then the other.”

Nevertheless, if you are an employer you should try to ensure that the investigator and decision maker are different people and have quite distinct roles.

Tom Kelleher V An Post [2013] IEHC 328

This case is well worth a read in an consideration of disciplinary procedures/employment law in teh workplace. Read it here.

J. Peart stated:

But in any event, as has been made clear by Barrington J. in Mooney, the nemo judex rule cannot apply in all its glory to all situations in the area of employment law. It is inevitable that often during an internal or in-house investigation leading to a dismissal the decision-maker and some or all of the investigators will have some form of contact, and that there may be communication of some kind about the issues involved.

Conclusion

It seems to me from the cases above that the courts recognise that what are fair procedures will vary from case to case, depending on the circumstances of each case, the contract of employment, the disciplinary procedure in the workplace, and the resources of the employer.

It also appears to be the case that there is a distinct divide between the investigative stage of any procedure and the disciplinary procedure.

Any “infirmities” in the investigative procedure can be remedied at the disciplinary stage, assuming the employee is given fair procedures in the disciplinary hearing/procedure.

 

How to carry out a disciplinary procedure in the Irish workplace-online course-learn more.

How to Deal With Fraud in the Workplace from an Employment Law Perspective

Workplace-Fraud

My past life in retailing flashed before me recently.

Before I became a solicitor I spent about 20 years in retailing, developing, running and selling my own retail businesses. I came across a few instances of theft from me by employees, including one large one when a pound was a pound.

Recently, I was contacted by an employer who uncovered an employee dipping the till in a retail workplace. He was primarily concerned with how to deal with the situation, and whether he should contract an Garda Siochána.

Given the substantial sum of money involved I felt he had no choice but to get the Garda involved.

But that then leads to the question: when the employee is arrested and questioned how the employer should deal with the situation, from an employment law perspective.

Suspending the employee on full pay until the outcome of a criminal prosecution could be an expensive move, especially given the pace at which some criminal cases come before the Courts in Ireland.

Before I take a look at what I believe the employer should do in a situation like this it is worth looking at fraud in the workplace, and some of the issues which arise.

What is fraud?

Firstly, fraud is an intentional act of deceit with the objective of gaining an unlawful advantage. It is vital that the act is intentional for, otherwise, it may just be a case of incompetence, inadvertence, or negligence.

Fraud in the workplace can take many different forms depending on the workplace ranging from clocking in/out cheating to fiddling expenses to dipping the till or business stock/inventory to falsifying records to gain an advantage etc.

Once an employer uncovers what she considers to be fraudulent activity what should she do?

Generally, the employer should have two goals: removing the fraudulent employee from the workplace to minimise the financial damage, and gathering evidence.

I would advise the use of the disciplinary procedure in the workplace in the first instance.

If the employer can form a view on reasonable grounds that the employee was engaged in gross misconduct then this should be a summary dismissal situation, in accordance with the disciplinary procedure and policy in the workplace. This is why it is vital to have a disciplinary procedure in the staff handbook, or as an additional document to the contract of employment, and which all employees confirm receipt of.

Note that what is required in respect of gross misconduct is the forming of a view on reasonable grounds, not the criminal burden of proof standard of “beyond a reasonable doubt” nor the civil standard of “on the balance of probability”.

It is also worth considering reducing the allegations to the ones with the strongest, clearest evidence and acting on these “sample allegations”. This will allow the investigation and disciplinary procedure to progress rather than having to wait an interminable time to gather all the evidence in what may be a complex investigation involving a lot of documents and witnesses.

It is important for the employer not to rush to judgment and to gather some crucial documents prior to embarking on the disciplinary procedure. These documents would include the written contract of employment and the staff handbook, or at a minimum the disciplinary procedure. This type of problem in the workplace is difficult to deal with if there is no written contract of employment or disciplinary procedure.

Once the employee is faced with allegations of gross misconduct and/or fraud one of two things is likely to happen:

  1. He will go out sick or
  2. He will resign.

How the employer deals with these situations will depend on the circumstances, the value of the fraud, perhaps the need to take action to prevent copycat acts and set an example, and other considerations.

However, the employer can still choose to make a complaint to an Garda Siochána and have a criminal prosecution carried out. In addition, she can pursue a civil claim against the employee to recover the value of the fraudulent activity.

To circle back to the situation at the beginning of this article the High Court in a 2015 case involving an employee of an Post and an Post held that it was in order for the employer to proceed with the employment disciplinary procedure, unless it was “manifestly unfair”, even where the criminal prosecution against the employee had not been concluded.

In this case the employee had sought an injunction against the employer carrying out the disciplinary procedure until the criminal prosecution had finished.

In conclusion, if you are the victim of employee fraud in the workplace how you react will depend on the particular circumstances of the case, and how the employee reacts when confronted with the allegations.

You can, though, invoke your disciplinary procedure, afford fair procedures and deal with the employee before the conclusion of any criminal prosecution, provided there is no “manifest unfairness”. If the employee is on certified sick leave matters will be more complicated and it would be advisable to seek professional advice before taking any action.