Disciplinary cases involving criminal prosecutions

A police investigation, criminal charge or conviction related to off-duty conduct is not necessarily a reason for disciplinary action in itself, if the matter has no bearing on the employee’s suitability for the job or their relationship with their colleagues, the employer or its customers (see paragraph 30, Acas Code; pages 36-37 non-statutory Acas guide).

Should disciplinary action be put on hold pending the outcome of criminal proceedings?
Where the matter has a bearing on employment (particularly where it relates to conduct at work), the employer may wish to question the employee as part of an investigation or disciplinary hearing. The employee may refuse to respond to questions, often on legal advice, on the basis that doing so could prejudice a pending police interview or trial. The employer should give the employee an opportunity to make a voluntary statement, ideally after the employee has had time to consider their position. What an employer should not do is interrogate the employee or seek to pressurise the employee into making any admissions of guilt.

Most employers will not usually wish to wait for the outcome of criminal proceedings before conducting the disciplinary hearing, particularly when the employee has been suspended on full pay, as this will usually take several months. Furthermore, the Acas Code requires the employer to hold any disciplinary hearing without unreasonable delay, which would suggest that it should not wait for the conclusion of court proceedings (paragraph 11, Acas Code). The non-statutory Acas guide states that “where the matter requires prompt attention, the employer need not await the outcome of the prosecution before taking fair and reasonable action” (page 36).

The EAT considered the previous authorities and gave guidance on the issue in Ali v Sovereign Buses (London) Ltd UKEAT/0274/06 and indicated that the following factors may be relevant when there are concurrent disciplinary and criminal charges:

• It might be impractical for an employer to wait, if a criminal case takes many months to come to court, before making a decision as to the future of the employee so far as their employment is concerned.
• The size of the employer’s business, the nature of the business and the number of employees. Tribunals recognise that employers, particularly small employers, may be placed in a dilemma when criminal charges are brought against an employee in circumstances relating to his employment.
• Any provision made in the terms of the employee’s employment, including the employer’s disciplinary code.
• There is no rule that, once an employee has been charged with a criminal offence, an employer cannot dismiss him if the employee is advised to say nothing until the trial.
• An employer must offer the employee the opportunity to give an explanation and, if the employer is contemplating dismissal, this must be made clear to the employee.
• Where the employer only learns of a problem when the police advise that they are bringing charges against an employee, the employer should still undertake an investigation. The employee should be given the opportunity to state their position, even if they don’t take that opportunity and the investigation and interview are fruitless.
• In extreme cases, the circumstances may be so blatant (for example, where an employee has been caught “red-handed”, arrested and charged) and sufficiently brought to the attention of the employer without the need for further investigation.
(See Legal update, Concurrent disciplinary and criminal proceedings: the right to silence and the Human Rights Act 1998.)

However, in Secretary of State for Justice v Mansfield UKEAT/0539/09 the EAT held that it may be appropriate to adjourn a disciplinary investigation while the police investigate and prosecute the employee for the same offence.

Furthermore, in some cases, an employee might be able to obtain an injunction to temporarily halt disciplinary proceedings. For an example, see Gregg v North West Anglia NHS Foundation Trust [2018] EWHC 390 (QB).

Level of investigation into criminal allegations
There is authority from the Court of Session in Scotland (although it has not been followed in England and Wales) suggesting that it would be improper for the employer to hold an internal inquiry where a future criminal trial might be prejudiced by any admission the employee may make, and that it would therefore not be unfair in such cases to dismiss without a hearing (Carr v Alexander Russell Ltd [1976] IRLR 220). However, it would be wrong to rely on this case as setting down any general principle that employers can dismiss without a hearing where there is a pending criminal trial. In Lovie Ltd v Anderson [1999] IRLR 164 the EAT held that it was insufficient for the employer to simply interview the employee as part of a preliminary investigation and then dismiss him on the basis that he has been charged by the police. Once the charges had crystallised, it was necessary that he be given the opportunity to attend a disciplinary interview and reply to those allegations, before the employers decided whether or not to dismiss him (Bulletin, PLC Magazine, April 1999). Therefore, only if the employee refuses to cooperate should the employer proceed to take a decision on the available evidence, having first warned the employee in writing that this is what they intend to do (page 36, non-statutory Acas guide).

The test as to whether the employer has adequately investigated before dismissing an employee is the same whether or not the Police are involved. The employer must have a reasonable belief in the employee’s guilt, based on a reasonable investigation (British Home Stores Ltd v Burchell [1978] IRLR 379), and the level of investigation carried out must have been within the “band of reasonable responses” (Sainsbury’s Supermarkets Ltd v Hitt; see The investigation). Where the charges against the employee are of a criminal nature and the potential effects of a finding of guilt are potentially grave (such as an effective end to the employee’s chosen career), the investigation must be “careful and conscientious” and must also be balanced, meaning that the investigator should look for (and put before the disciplinary panel) evidence which may point towards the employee’s innocence as well as guilt (A v B [2003] IRLR 405).

Is the employer entitled to rely on police investigations?
The non-statutory Acas guide suggests that employers should carry out their own investigation and disciplinary hearing and should not ask the police to do so on their behalf (page 36). However, if a police investigation uncovers wrongdoing by the employee, the employer may rely on the information supplied by the police when conducting its disciplinary process. In Harding v Hampshire County Council UKEAT/0672/04, a case in which a youth worker was investigated by the police for possible indecency with children and accessing pornographic material, the employer conducted a reasonable investigation when it relied on the findings of a police investigation rather than conduct an inquiry from scratch into the allegations (see Legal update, Disciplinary investigations following a police investigation).

While Harding is an example of a case in which it was not necessary for an employer to conduct its own investigation separate to those contained in a police report, this will not be so in every case. For example, there may be a conflict of evidence which calls the reliability of the information supplied into doubt. In most cases, the employer should not rely solely on the outcome of a police investigation.

In A v B [2010] IRLR 844, the EAT indicated that employers must, in principle and subject to certain safeguards, be entitled to treat information received under an official disclosure regime as reliable (see Legal update, Unfair dismissal: unproven allegations and reputational risk). The case subsequently came before the Court of Appeal (as Leach v The Office of Communications (OFCOM) [2012] IRLR 839 after an anonymity order was lifted) which approved of the approach adopted by the EAT and gave general guidance for employers when assessing evidence received from a third party. The employer should:

• Assess for itself, as far as practicable, the reliability of what it has been told.
• Check the integrity of the informant body and the safeguards within its internal processes concerning the accuracy of the information supplied.
• Consider the likely effect of disclosure and whether there was cogent evidence of a pressing need for disclosure to the employer.
• Take a critical approach to the information they receive and ensure their reason for dismissing the employee justifies that decision.
(See Legal update, Fair dismissal for SOSR based on unproven allegations and reputational risk.)

Can disciplinary proceedings continue after a criminal acquittal?
An employer is not, however, bound by the outcome of a police investigation or criminal trial. There will be cases where it is appropriate for an employer to continue its investigation after the police have decided not to press charges or the employee has been acquitted at a criminal trial. In R (Redgrave) v Commissioner of Police for the Metropolis [2003] 1 WLR 1136, a case involving regulatory proceedings, the court noted three differences between criminal and other proceedings:

• The character and purpose of the proceedings is entirely different.
• The material before the tribunal is likely to be different. Rules of evidence are generally exercised less strictly in a disciplinary context where at least the accused’s liberty is not at stake.
• Witnesses will be more willing to give evidence at disciplinary hearings held in private than in the full glare of open court proceedings.
When is it appropriate for the employer to involve the police?
In Crawford and another v Suffolk Mental Health Partnership NHS Trust [2012] IRLR 402 the Court of Appeal made it clear that employers must be careful not to subject their employees to the heavy burden of potential criminal proceedings “without the most careful consideration and a genuine and reasonable belief that the case, if established, might justify the epithet “criminal” being applied to the employee’s conduct” (see Legal update, Court of Appeal gives guidance on misconduct procedures, suspension and Police involvement).