One of my employees was allegedly seen committing a criminal act outside work by a colleague, and the police are involved. Can I take disciplinary action and, if so, must I wait until the police investigation is finished?
The fact that an employee has been charged with a criminal offence does not, by itself, normally justify disciplinary action. As the alleged incident did not occur at work, the key question is whether or not it has any effect on the employee’s suitability to do their job, and/or their relationship with colleagues, customers, and you as their employer (see the Acas code of practice on disciplinary and grievance procedures (PDF format, 1.58MB), on the Acas website). If the alleged incident does have such an effect, you must investigate it and then decide whether or not disciplinary action is necessary.
Your investigation should be thorough and fair, following your internal procedures, and you should take all the circumstances and relevant facts into account, including any evidence in the employee’s favour. The non-statutory Acas guide to discipline and grievance at work (PDF format, 900K) (on the Acas website) advises employers not to ask the police to conduct the investigation on their behalf or be present at any disciplinary meetings.
If you decide to begin disciplinary proceedings against the employee, there is no hard and fast rule that requires you to wait until the outcome of the police investigation. In Secretary of State for Justice v Mansfield, the Employment Appeal Tribunal held that an employer has a wide discretion when considering whether or not disciplinary proceedings should take place alongside a police investigation. Such investigations can take a long time to carry out, and you may well be justified in starting disciplinary proceedings before the outcome of the police investigation is known, provided that you have carried out your own thorough investigation and have decided that the employee has a disciplinary case to answer.
Alternatively, it may be appropriate to postpone the disciplinary proceedings while the police investigation is ongoing. This may be particularly appropriate where the nature of the employee’s position means that incidents of misconduct have to be reported to a statutory or regulatory body. If you decide to postpone proceedings, you must ensure that they are resumed as soon as reasonably practicable following the conclusion of a police investigation. Otherwise, the employee could claim that there was an unreasonable delay which prejudiced their case, thereby rendering any subsequent dismissal unfair.
You should consider suspending the employee for the duration of any investigation and disciplinary proceedings, as failing to do so may mean it is harder to justify any subsequent disciplinary action. However, any suspension should be with pay unless there is a contractual right not to do so, and in any event a lengthy unpaid suspension could lead to the employee resigning and claiming constructive dismissal.
If after going through a disciplinary process you have evidence to support a reasonable belief in the employee’s guilt, you will need to consider the appropriate disciplinary penalty. A criminal allegation does not in itself justify dismissal, and which disciplinary penalty is appropriate will depend on the nature and seriousness of the allegation, and its effect on the employee’s job or the employer’s reputation.
Simon deMaid, Associate, Howes Percival Solicitors