Theft, embezzlement, bribery: it is not uncommon for employees to be suspected of committing a criminal offence. Employers are then faced with the decision of whether to involve the law enforcement authorities in addition to issuing a dismissal without notice (on suspicion of criminal conduct). This article provides an overview of the advantages and risks that a criminal complaint can entail.
Principle: termination of employment has no direct influence on the criminal law assessment
The assessment of a breach of duty under termination law is, first of all, independent of the assessment under criminal law. This means the termination can be effective even if the criminal prosecution authorities do not recognise a criminal offence. Conversely, the termination can be ineffective even though a criminal offence has been committed. At the same time, it is clear that from a labour law perspective that there is no compelling necessity to file a criminal complaint in the event of a dismissal related to suspected criminal conduct.
Advantages of a criminal complaint
However, involving the law enforcement authorities can have an indirect influence on the termination situation and also have potential benefits for employers. These include the following.
Prosecuting authorities can help with clarification
The public prosecutor’s office can use its special investigative powers (search, seizure etc.), which sometimes go further than the means available to the employer. As a result, the facts of the case can possibly be clarified more quickly and comprehensively. The results of the investigation can in turn be incorporated into any potential protection from dismissal proceedings and, if necessary, even justify a new (criminal) dismissal on the basis of newly gained knowledge from the criminal investigation proceedings.
Clear signal from the employer
The involvement of the criminal prosecution authorities expresses the employer’s intention to clarify and pursue the (possible) misconduct of the employee using all available means. This consistent approach may well leave an impression with the judge in favour of the employer’s position in any potential legal action for protection against dismissal. This may also incidentally send a clear signal to the workforce (that there is zero tolerance of criminal conduct).
Reduction of the risk of misconduct
From the point of view of individuals acting on behalf of the employer, the involvement of the prosecution authorities may be necessary in order to be compliant themselves. If, for example, it is later necessary to enforce possible claims for damages by the company against the dismissed employee, it may be relevant how exhaustively the facts of the case were clarified. In this context, it may be important (including in the context of internal pressure on mangers or company officers to justify their actions) to be able prove that all available means of clarification have been used, by involving the criminal prosecution authorities.
Risks of a criminal complaint
On the other hand, filing a criminal complaint also entails certain risks. These include the following.
(Early) discontinuation of criminal investigation proceedings
Sometimes reports to the prosecuting authorities do not trigger the investigative measures expected by the employer. If the criminal investigation proceedings are discontinued due to a lack of suspicion, this can have a negative effect on the possible dismissal protection proceedings, the thought process being: ‘Well, then the suspicion was probably not justified …’
Increased attention on the employer
Investigations by law enforcement agencies do not always proceed quietly. It is possible that investigative measures among employees or customers do not go unnoticed, for example when searches or witness interviews take place. The working atmosphere and corporate image can suffer as a result, especially if the accusation is that the employer has overreacted by filing a criminal complaint and has made ‘a mountain out of a molehill’.
Criminal charges yes or no? The question cannot be answered in a general way: the advantages and risks should be weighed up in detail taking into account the circumstances in each individual case.