In their relationship with their employees, employers can be confronted with criminal law in many ways. The employer may then find himself in a difficult position, having to play chess on various boards at the same time.
Under criminal law, an employer may be held liable for acts and omissions with respect to his employee. For example, the main rule after a fatal accident of an employee at work is that a criminal investigation is started to see if the employer has acted criminally culpable. In some circumstances, criminal conduct of an employee can be attributed to the company. An example is the criminal liability of a company for the conduct of a sales manager who bribes a buyer at a customer to achieve his targets. An employer can fall victim to an employee as well, for example if the employee steals from the employer or sells trade secrets to competitors.
Work and home life
In addition to the situations described above, employers are regularly confronted with criminal conduct of an employee where there is no direct relationship with the employer, but as a result of which the employer is embarrassed. This can be the case if an employee is suspected of an offence at home, such as domestic violence (abuse) or a sexual offence. Such criminal conduct can occur close to the employer, for example if the employee stalks his ex-partner using the computer of the employer or if child porn is found on the computer made available by the employer.
Questions under employment law
If an employee has possibly committed acts for which he is responsible under criminal law (whether or not in the context of his relationship with the employer), there are usually all kinds of questions under employment law in addition to those under criminal law: How to deal with the employee? When can you suspend an employee or dismiss him (without notice)? Is it sufficient that there is a suspicion of a (serious) punishable offence? What should you do as an employer if you become aware of possible criminal conduct of an employee: do you report to the police or not, or are you obliged to report? Can you investigate a suspicion yourself, how do you organise such an investigation and to what extent is it limited by the privacy of the employee? Are there rules within the organisation for these kind of situations? What do you do with the results of the investigation? Can you take action against the employee after a criminal conviction and if so, what kind of action? How do you deal with the confidentiality that employees often desire with regard to their conduct? Do you have any obligation as an employer with respect to possible victims of your employee and what are the legal risks associated with this? Do you have moral obligations as an employer?
Could there be other risks for the employer? In addition to typical legal issues, other issues must be addressed which are at least equally important. What does the conduct of the employee mean for the other employees of the department where the employee works? Should you support the employee as an employer? And on top of all this, the conduct of the employee and the choices made by the employer in response can have major consequences for the reputation of the company.
This list of issues is not based on theory, but on practice. At Van Doorne we have experience in dealing with these kind of issues within companies. We can provide hands-on assistance to the employer in the various relevant areas of law. We can keep you from slipping up in these difficult situations, in the often difficult position you unintentionally find yourself in.
For more information you can contact Jan Leliveld or Els de Wind.