What should you do when an employee is arrested by the police? Most employers will consider whether they should be dismissed. However, employers are regularly told that they cannot rely on the police to do the job of investigating for them and that they should conduct their own inquiry.
The police may discourage the employer’s investigation to protect their own from the risk of prejudice and the employee’s defence lawyer may seem to avoid the employer’s scrutiny of the situation. The recent employment tribunal case of Harding v Hampshire County Council sheds new light on the investigatory process and what is expected of employers in such situations.
Mr Harding had been employed as a youth project worker by Hampshire County Council for two years when allegations of sexual misconduct were made against him. Harding was arrested and, after a police investigation, the Crown Prosecution Service decided that there was insufficient evidence to convict, so no prosecution was brought.
Later, Mr Poynter, the youth service manager for the council, met Harding and explained that he was to carry out an investigation. The police papers were released to Poynter and six months later, after numerous unsuccessful attempts to meet Harding, Poynter released his report, concluding that, on the balance of probability, the allegations were proven. Harding was dismissed for gross misconduct and lost a tribunal claim for unfair dismissal.
The EAT case
The subsequent Employment Appeal Tribunal (EAT) case accepted that the report “set out the information and the history in detail” and “contained a lengthy review of the police information compiled by the police”. Importantly, Harding himself agreed that the police investigation had been “thorough” and the EAT considered it to be “on the face of it, manifestly detailed”. It further accepted that Poynter had “set out his conclusions that there was sufficient evidence to demonstrate that on the balance of probability the allegations were proven and amounted to gross misconduct”.
Harding appealed against the decision that the council’s investigation had been reasonable, suggesting that the council should have carried out its own investigations rather than relying on the police investigation.
The EAT concluded that, when examining the reasonableness of an investigation by an employer, the issue to be considered is not whether there could have been further investigation, but whether the investigation conducted was reasonable in all the circumstances. It referred to the case of A v B, in which it had held that, where criminal charges are brought against an employee and the potential effects are grave, an employer should carry out a “careful and conscientious” investigation. There is no general rule or principle of law laid down as to whether it is sufficient for an employer to rely upon a police investigation, making no further inquiries of its own.
The EAT concluded that while the facts of each case are likely to differ, in this case it was satisfied that the council had made all inquiries that a reasonable employer would have made.
The EAT stressed that the facts of this case were unique. Nevertheless, this case makes it clear that the key to handling this type of situation is to make sure that there is a proper investigation.
Make sure that you collect all the evidence that may be available to you. You should:
- Interview all staff who may be able to provide information and keep a careful note of their evidence
- Make a note of all information obtained from the police and request a copy of their report and evidence (although this may not be forthcoming)
- Keep copies of documentary records that may be relevant
- Always follow the statutory dismissal and disciplinary procedures.