Can an Employee Be Terminated for a Police Record?

Just Causes and Due Process in the Philippines

Short answer: A police record by itself—especially a mere arrest or pending case—is not an automatic ground for dismissal in the Philippines. Termination must be anchored on a lawful cause under the Labor Code (or a valid contractual/CBA ground that is consistent with law) and must observe the twin-notice and hearing requirements of due process. A final criminal conviction may justify dismissal in certain circumstances (e.g., where the offense demonstrates unfitness for the job, causes loss of trust, or results in prolonged incarceration that makes performance impossible), but it is never automatic.

Below is a comprehensive, practice-oriented guide.

1) The Legal Frame: What counts as a “lawful cause” for dismissal?

Under Article 297 of the Labor Code (formerly Art. 282), an employer may terminate employment for just causes, namely:

Serious misconduct or willful disobedience of lawful orders;
Gross and habitual neglect of duties;
Fraud or willful breach of trust;
Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representative; and
Other causes analogous to the foregoing.

Separately, authorized causes (Articles 298–299) relate to business necessities (e.g., redundancy, retrenchment) or disease, and are not about wrongdoing.

Where does a “police record” fit?

There is no standalone ground that says “has a police record = fireable.”
A police record may be evidence that supports a just cause (e.g., fraud, loss of trust) or may be irrelevant if it does not relate to work or does not meet the evidentiary threshold.

2) Arrest vs. Pending Case vs. Conviction

A) Arrest (no charge yet or charge newly filed)

Presumption of innocence applies. A bare arrest—without more—does not establish just cause.
If the employee’s conduct that led to arrest also constitutes workplace misconduct (e.g., theft of company property), the employer must independently establish the misconduct through substantial evidence in an administrative process. The police blotter or arrest record may be corroborative, but it is rarely sufficient alone.

B) Pending criminal case (no final conviction)

A pending case does not automatically justify dismissal.
Employers sometimes place the employee under preventive suspension (see §7) if the alleged acts pose a serious and imminent threat to the company or co-workers (e.g., security risks, tampering of evidence), but they must still investigate and comply with due process.
If the same facts amount to a work-related offense (e.g., falsifying reimbursement claims), the employer may proceed with administrative charges regardless of the criminal case’s timetable. Administrative liability uses the substantial evidence standard (lower than “beyond reasonable doubt”).

C) Final criminal conviction

A final conviction (i.e., no longer appealable) for an offense against the employer (e.g., qualified theft of company property) can directly fall under Article 297(4).
A conviction for offenses not directed against the employer may still justify dismissal when:
- The offense impugns integrity essential to the job (e.g., cash custodian convicted of estafa → loss of trust),
- The offense creates actual or imminent risk to co-workers or clients (e.g., security-sensitive roles), or
- Incarceration makes continued employment impossible, leading to impossibility of performance (treated as an analogous cause) or a valid ground for termination after fair process.
Even with a conviction, employers should articulate the nexus between the offense and the employee’s job, or the impossibility of continued service.

3) The “Loss of Trust and Confidence” Pathway

Loss of Trust and Confidence (LOTC) is a frequent route when the role requires a high degree of trust (e.g., managerial employees, cash-handling, procurement, audit, IT admins with elevated access).

To validly dismiss for LOTC, the employer should show:

The employee occupies a position of trust, and
There is clearly established (not just suspected) misconduct related to their duties that justifies loss of trust.

A police record can be a starting point, but the employer must still build an administrative case (document review, audits, witness statements) to meet the substantial evidence standard.

4) Off-Duty Conduct: When is it a valid ground?

As a rule, off-duty acts are private. However, dismissal may be upheld if the conduct:

Directly relates to job requirements (e.g., driver convicted of DUI; security guard involved in gunrunning),
Damages the employer’s legitimate business interests (e.g., reputational harm for public-facing roles when clearly established), or
Breaches company policies that are reasonable, known to the employee, and consistently enforced (e.g., code of conduct clauses on crimes involving moral turpitude or violence).

Employers should avoid overbreadth. “Any police record” clauses are risky; tailor policies to the role and to legitimate, demonstrable business needs.

5) What Employers May Ask For (Hiring & Ongoing Employment)

Background checks (including NBI/Police Clearance) are common in hiring. Collect only what is necessary, with express consent, and observe data minimization under the Data Privacy Act (DPA).
Avoid blanket policies that automatically disqualify applicants/employees for any record. Instead, assess relevance: the nature of the offense, time elapsed, rehabilitation, and the job’s sensitivity.
For current employees, updated clearances may be requested only when justified (e.g., periodic vetting for regulated/security-sensitive roles) and disclosed in policy.

6) Due Process: The Non-Negotiables

Even if there appears to be a substantive ground, procedural due process must be observed:

First Written Notice (Notice to Explain, “NTE”)
- Clearly state the acts complained of, the policies/grounds violated (cite handbook provisions and Labor Code articles), and the specific evidence (e.g., audit trail, CCTV, police complaint number).
- Give the employee reasonable time to respond in writing (the Supreme Court has treated five [5] calendar days as reasonable in many cases).
Opportunity to be Heard
- May be an administrative conference where the employee can present evidence, submit affidavits, and be assisted by counsel or a representative. A formal trial-type hearing is not mandatory, but a genuine opportunity to be heard is.
Second Written Notice (Notice of Decision)
- Communicate the findings, legal/policy basis, and the penalty (e.g., dismissal), addressing the employee’s defenses.

Burden of proof is on the employer, and the standard is substantial evidence (relevant evidence that a reasonable mind might accept as adequate).

Failure of due process: Even if there is just cause, lack of proper procedure can result in nominal damages and, in some cases, reinstatement with backwages if the substantive ground is not proven.

7) Preventive Suspension

Allowed only when the employee’s continued presence poses a serious and imminent threat to the life or property of the employer or co-workers (e.g., access to systems that can be tampered with).
Maximum of 30 days. If investigation needs more time, the employer may extend with pay. Preventive suspension is not a penalty; it is a precautionary measure.

8) Incarceration and “Impossibility of Performance”

If an employee is detained for a prolonged period, making attendance impossible, termination may be justified on an analogous cause of impossibility of performance—but the employer must still provide due process notices and establish the facts (detention order, duration, failed attempts to coordinate).
If detention is brief and the employee is later released without charge, summary dismissal is not justified; consider leave, suspension, or reassignment, depending on circumstances and policy.

9) Special Roles & Regulated Industries

Banking/finance, casinos, remittance, securities, BPOs with PCI-DSS/ISO controls, security agencies, pharma, and critical infrastructure often impose higher vetting standards. Policies should:
- Define sensitive positions;
- Specify disqualifying offenses or look-back periods (e.g., crimes involving dishonesty within the last X years);
- Provide review/appeal mechanisms and consider rehabilitation.

10) Data Privacy & Fairness Considerations

Lawful basis & consent: Collect and process police/NBI records with consent and for legitimate interests that are proportionate to the role.
Retention limits: Keep records only as long as necessary; secure them.
Transparency: Inform employees why checks are required, how data will be used, and their rights (access, correction).
Avoid discrimination: Evaluate case-by-case, focusing on job relevance rather than stigma.

11) Practical Playbooks

For Employers

Policy hygiene:
- Update the code of conduct to cover crimes involving dishonesty, violence, or moral turpitude when job-related.
- Define loss of trust standards and sensitive roles.
- Build in rehabilitation or look-back periods (e.g., “no conviction for theft/fraud within past 5 years” for cashiers).
Process discipline:
- Preserve evidence (CCTV, logs, audit reports).
- Use NTE → hearing → decision templates; track timelines.
- Consider preventive suspension only with proper grounds and duration control.
Risk-based decisions:
- Link the offense to job risks; avoid blanket reliance on “police record.”
- Document why lesser penalties (warning, suspension, transfer) are inadequate.

For Employees

Know your rights: demand specifics in the NTE; request copies of evidence.
Submit a written defense with documents (clearance, court orders, affidavits, performance records).
If detained, have counsel notify HR and propose leave/arrangements where feasible.
Challenge overbroad policies and object to disproportionate data collection under the DPA.

12) FAQs

Q1: Can my employer fire me because I was arrested over the weekend? Not on arrest alone. They need a lawful cause and must follow due process. If the arrest relates to alleged theft of company property, they can investigate and, if supported by substantial evidence, pursue administrative charges.

Q2: There’s a pending case (no conviction). Can I be dismissed? Not automatically. The employer may investigate the underlying conduct. If they prove a work-related offense (e.g., falsification, harassment), dismissal may be valid after due process—even while the criminal case is unresolved.

Q3: I was convicted of a crime unrelated to work. If the conviction undermines a core qualification (e.g., integrity for a treasurer) or results in incarceration that prevents work, dismissal may be valid after due process, with the reasoning clearly articulated.

Q4: Can the company require an NBI/Police Clearance annually? Yes, if necessary and proportionate to the role and properly disclosed. They must handle your data under the Data Privacy Act.

Q5: Is a hearing mandatory? A formal trial-type hearing isn’t required, but the employee must be given a real chance to explain (written explanation + meeting/conference if requested). Two written notices are mandatory.

13) Key Takeaways

A police record is not, by itself, a legal ground for termination.
Dismissal must tie to a just cause (misconduct, fraud/LOTC, crime against employer, or analogous cause like impossibility of performance) and follow procedural due process.
Arrest/pending case ≠ guilt. Investigate independently and decide on substantial evidence.
Conviction can support dismissal, especially for trust-sensitive roles or incarceration, but the nexus to the job must be shown.
Always observe Data Privacy principles when handling police/NBI records.

This article provides general information on Philippine labor law principles applicable to police records, just causes, and due process. Specific situations can turn on facts, company policies, CBAs, and evolving jurisprudence.