From HR to HMPS? Common criminal offences committed by HR professionals

November 20, 2014

We’ve previously looked at some of the tricky issues HR professionals may have to deal with in relation to criminal offences committed by employees. But how easy would it be for a HR professional to inadvertently land their employer (or even themselves) in the dock in the course of dealing with day-to-day employment issues?

Although most employment issues are governed by civil law and contract, there are a variety of employment-related criminal offences that could inadvertently be committed when dealing with day-to-day employment issues.  Penalties range from a £200 fine to imprisonment (or even both). 

Of course, if a company or its officers/employees are convicted of a criminal offence, there may be other implications, such as adverse publicity and reputational damage, and possibly the need to declare the conviction as part of any tender process.  In practice, these costs may far exceed the amount of any fine.

What follows is a non-exhaustive list of some of the more common employment-related criminal offences. 

Knowingly employing an individual who does not have permission to work in the UK.  
Employers must carry out certain checks to confirm that job applicants have permission to carry out the work for which they are employed before the employment begins.  For certain individuals, it will be necessary to repeat the checks at specified points during their employment.  Penalties vary, but the worst case is an unlimited fine and/or up to two years’ imprisonment.

Failing to pay the National Minimum Wage or maintain the required records. 
It is an offence for employers to refuse or willfully neglect to pay workers the National Minimum Wage.  It is also an offence to fail to maintain or to falsify payment records.  If the offence is committed with the consent or connivance of an officer of the employer, that officer is also guilty of an offence and in the words of the statute is “liable to be proceeded against and punished accordingly”.  In the most serious cases, the maximum penalty is an unlimited fine.  The government also has express powers to “name and shame” non-compliant employers.

Breaches of financial services law.
Companies establishing and operating employee share schemes need to take care that they do not inadvertently breach the prohibitions on making financial promotions or conducting regulated activities.  The potential penalties are an unlimited fine and/or up to two years’ imprisonment.

Failing to comply with obligations under the Working Time Regulations 1998 (WTR)
Employers have various obligations under the WTR, including taking reasonable steps to ensure that each worker does not work more than an average of 48 hours per week (unless they have validly opted out) and maintaining adequate working time records for at least two years. Employers that fail to comply with their obligations under the WTR may receive an unlimited fine. Where an employer is issued with an improvement or prohibition notice requiring certain activities to be performed or ceased, any person who contravenes such a notice may receive an unlimited fine and/or up to two years’ imprisonment.

Permitting an employee to work during their compulsory maternity leave. 
Employers will commit an offence by allowing an employee to work during their compulsory maternity leave, which is two weeks from the day the baby is born for most employees, and four weeks from the day the baby is born for factory workers.  The maximum penalty is currently a £500 fine.

Breaching data protection obligations.  
Unless one of the exemptions applies, employers must register with the Information Commissioner’s Office before processing any personal data. Failures to register, renew the registration each year or notify the Information Commissioner’s Office of changes to the registered details are all criminal offences.  Penalties vary, but the worst case is an unlimited fine.

Failing to comply with a request from an authorised officer of Jobcentre Plus. 
Employers are required to provide information and documents requested by authorised officers of Jobcentre Plus (or another government department) and it is an offence to intentionally delay or obstruct such officers in the exercise of their powers, or to refuse or neglect to provide information or documents. The maximum penalty is currently a £1,000 fine, with a continuing penalty of £40 per day.

Failing to notify the Secretary of State of proposed collective redundancies. 
In addition to the duty to inform and consult employee representatives about collective redundancies, where an employer is proposing to dismiss 20 or more employees within a period of 90 days or less it must notify the Secretary of State for Business Innovation and Skills. Notification must be made in writing at least 30 or 45 days before the first dismissal takes effect (depending on how many employees are to be dismissed) and before notices of termination are issued.  Remember, this notification requirement will also apply where changes to terms and conditions of employment are being effected through a termination and re-hire process.  The maximum penalty is currently a £5,000 fine.

Failure to provide a written statement showing how a redundancy payment has been calculated. 
On making a redundancy payment, the employer is required to give the employee a written statement showing how the payment has been calculated.  Failure to do so could result in a £200 fine.  A further offence is committed if having failed to provide a written statement in the first instance the employer unreasonably fails to provide one in response to a written request from the employee.  A maximum penalty of a £1,000 fine may be issued.

Dismissing a reservist because they have been or are likely to be called out. 
It is an offence to dismiss a reservist solely or mainly because they have been or are likely to be called out.  The maximum penalty is a £1,000.  Employers should also be aware that from 1 October 2014, the normal qualifying period of employment for unfair dismissal claims does not apply where the principal reason for the dismissal is connected with an employee's membership of the reserves.


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Tom Pennington-Hare
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tpennington-hare@foxwilliams.com

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