A recent and widely reported case, in which an airline pilot was arrested abroad on drug charges has drawn nationwide attention. The situation is an uncommon one, but it raises questions that many organisations would struggle to answer with confidence. In this note, we set out the key considerations that this case has brought into focus for employers.

1. Can an employer terminate the contract based on an arrest, or must you wait for a conviction? Rule no. 1 - the standard of proof in employment cases is different from the criminal standard. As a company, you can run your own internal investigation, and if you are able to prove misconduct, you can dismiss the employee without waiting for the criminal case to finish.
   

   The tricky part is on how you can obtain the evidence you need to proceed. Here, cooperating with the enforcement agencies can be the key to some of those answers. As an employer, you may be able to obtain information or evidence connected to the case, which in this instance could be the drug test report showing that the pilot was under the influence of drugs in the course of his work.
   

   Remember, your main task is to connect the misconduct to the role, and if you can prove that the misconduct is severe or damaging, you have a strong chance of justifying a dismissal.

   Now, if the crime is really serious and you fail to obtain any valuable information, you can also consider terminating without going through the usual due process, such as a domestic inquiry. We won’t normally tell you this, but circumstances can be somewhat different when it involves a serious crime. Our basis for this recommendation is that the Industrial Court has time and again concluded that the absence of a domestic inquiry, or a flawed one, is not fatal in any event, because the Court can examine the case and its merits afresh.
   

2. If an employee is arrested, can we treat him as having absconded from work? Absconding, or abandonment of employment, describes an employee who has deliberately left his job with no intention of returning. The courts have held that an employee held in a prison cell has made no such choice, so his absence is treated as involuntary. Because it is involuntary rather than a deliberate walkout or a wilful breach, neither s.15(2) nor s.13(2) of the Employment Act 1955 applies. If you do need to bring the employment to an end, the right footing is the underlying misconduct and not abandonment.
   

3. Can you require employees to undergo drug testing at the workplace? The short answer is yes. The bigger question is how, because the right to require an employee to undergo a drug test has to come from somewhere, and that is usually the employment contract or a related policy.
   

   If you already have a drug and alcohol policy in place, make sure it gives you the right to conduct such tests, whether at pre-employment, at random, or where there is reasonable suspicion of drug use or abuse.
   

   It is also important to keep in mind that a test result amounts to health information and is treated as sensitive personal data under the Personal Data Protection Act 2010. Processing this information therefore requires the employee's explicit consent.
   

4. Can you carry out spot checks on employee’s bags, lockers or desks? If the property belongs to the company, such as a laptop, phone, locker or workstation, then your policy should reserve the right to conduct spot checks.
   

   HR must remember that you are not a law enforcement officer, which means a spot check on an employee's own belongings, such as his bag or personal phone, cannot be forced on him against his will.
   

   Where you have established the right to search company property and the employee refuses outright, you can treat that refusal as misconduct.
   

5. Are we required to continue paying salary if the employee is detained by the police? Wages are paid for work done, so no work generally means no pay. Under the definition of wages in s.2 of the Employment Act 1955, salary is paid for work carried out under a contract of service. As the detained employee is unable to perform any work, and detention is not a form of paid leave, he can be placed on unpaid leave for the period of his absence.

Conclusion

An arrest puts an employer in an awkward position, but it does not leave you powerless. This could’ve happened to any employer and the practical takeaways here suggests a thorough review of contracts / drug and alcohol policy now, make sure your right to investigate, test and search is properly written in, and be clear on the correct footing for each decision, from dismissal through to salary.