Dealing with Dropped Charges: Employer Options

As Manchester United weigh up their options regarding footballer Mason Greenwood, this article looks at what employers should do if an employee has remained employed during a criminal investigation, but has subsequently had those charges dropped or even been found innocent following a trial.

Mason Greenwood was charged last year with attempted rape, controlling and coercive behaviour and assault, but charges were dropped by the CPS in February 2023. Since then, Greenwood has not played for Manchester United. However, as the new Premier League season approaches, the club is now considering whether he should play for them again. 

After the charges were dropped, United reported they were conducting their own internal investigation, which no doubt would have taken into consideration Greenwood’s conduct, the reputational damage the club had suffered as a result of the allegations, together with the scope for further criticism if he is allowed to play for them again. Manchester United fans have also made it clear that they do not want to see the number 11 back on the pitch. 

Of course, the situation with footballers is usually different to a normal employee, given that they will usually have a significant financial value to the club they play for. Mason Greenwood would likely attract a transfer fee in the tens of millions, so as such, the decision to terminate a player’s contract often bears huge commercial consideration too. However, in terms of employment law, the obligations are the same.

Often in cases where criminal charges are dropped, the accused employee will feel a sense of justice and relief that they are not deemed responsible.  This can often make it difficult for employers, who then have to conduct their own investigation.

First and foremost, it is important to stress to any employee in this situation that the tests applied in an employment investigation will be different to those applied in a criminal investigation. In a situation of potential gross misconduct, an employer does not necessarily have to prove that the employee committed gross misconduct, all they have to do is to have a reasonable belief that the individual committed misconduct, and that this belief was formed based on a reasonable investigation.

As such, an employee facing criminal charges could be found not guilty or have the charges dropped, but could still be found to have committed gross misconduct and dismissed, even though the conduct relates to the exact same incident. 

What does the law say?

As we know, an employee with 2 years’ continuous service (such as Greenwood) has the right not to be unfairly dismissed. The potentially fair reasons that would apply in a situation such as this would be conduct and some other substantial reason (SOSR).   

Well drafted employment contracts will give an employer the opportunity to terminate employment if an employee is convicted of a criminal offence, but this only deals with convictions.

The ACAS Code of Practice on Disciplinary and Grievance provides examples of gross misconduct, which includes bringing the organisation into serious disrepute.  Given the circumstances around Greenwood’s arrest and the nature of the allegations it is fair to say that this could be something his employer could rely on if they were considering termination of his contract. However, Greenwood is high profile so the scrutiny is more significant.  Employers need to think about the extent of the reputational damage before deciding if it is reasonable to dismiss. 

Another option for the club in this case would be to use the ‘catch-all’ provision of SOSR, which is often used in circumstances where it is no longer practicable for the employer to maintain the employment relationship with the employee.

Given the huge potential for further reputational damage to the club, the financial impact this could have given its multi-national sponsors, together with third party pressure, in this case the fans and the media, this could be another option available when considering termination.  A termination for SOSR would entitle to an employee to be paid their notice.

What do employers need to remember? 

Finally, don’t forget employers should never assume that they can dismiss someone just because someone is facing criminal charges.

An employment tribunal will still expect you to follow all of the same procedures and processes and failing to do so could still result in findings against employers, even where the criminal charges are extremely serious and the evidence appears to be compelling.  

Key points to remember for any employers in this situation include:

• You may need to pause an internal investigation if the police are involved for fear of prejudicing their investigation.
• You still owe a duty of care to employees who are facing charges.
• Be clear that the requirements of a police investigation are different to that carried out by an employer.
• Think about your reputation – what might your clients or other staff think!

Don’t assume you have to dismiss, you still need to do a fair and through investigation.

Speak to an employment law solicitor

If you are unsure of your responsibilities as an employer either during an employee's criminal investigation or following the dropping of their charges, please don't hesitate to contact our team to discuss your concerns. Complete the enquiry form below and one of our solicitors will be able to help.