Disciplinary proceedings and criminal investigations

Previously in this column we have considered the features of a fair investigation into concerns raised by, or about, an employee. One particularly thorny area is when an employer or manager is required to investigate conduct by an employee who is also the subject of a police investigation and possible criminal charges. In this article we address some of the particular issues that may rise in these circumstances.

January 15, 2009

The timing of internal investigations

A manager, generally with advice from the human resources department, will first need to consider whether formal internal disciplinary proceedings should take place before or after any criminal investigation or criminal proceedings are concluded. This will be a very important decision and one on which legal advice should be sought for the reasons explained below.

One of the potential risks of acting before criminal proceedings are concluded is that the commencement of an investigation may compromise or undermine evidence relevant to the police investigation. Sometimes managers may find themselves unable to conduct a meaningful investigation until the police have completed their inquiries.

However, managers will wish, as far as possible, to avoid postponing any internal proceedings indefinitely, given that a significant delay may result in an extended period of suspension on full pay for an employee who may be suspected of very serious misconduct. In extreme cases it can take years for a matter to be concluded at a criminal trial. There is also the danger that at a late stage a criminal prosecution can collapse, perhaps for technical legal reasons. In addition, from an employment law point of view, a significant delay can jeopardise the fairness of a manager’s investigation because memories fade, evidence is lost and, if a suspension continues for too long, the accused employee’s reputation may be irreparably damaged.

Careful consideration must be given to these issues and decisions taken kept under review as a police investigation progresses. A manager should be prepared to be flexible as new facts come to light, perhaps to initiate an investigation previously held off until the criminal side was dealt with or to halt an internal investigation that when it was started had seemed appropriate.

Conducting an investigation

A manager undertaking an internal disciplinary investigation is not expected to replicate a police investigation. One key difference between internal disciplinary proceedings and criminal proceedings is the burden of proof. There is no requirement under an internal disciplinary investigation for a fact to be established beyond reasonable doubt. Instead, the investigator need only be satisfied on a balance of probabilities that the misconduct has been committed before taking any disciplinary action. This means that while the police or Crown Prosecution Service may decide that there is insufficient evidence to uphold a criminal conviction, a manager may legitimately conclude that an employee is guilty of serious misconduct and should be dismissed. An employee may also be guilty of breaches of disciplinary rules that will justify dismissal in any event, even if it is not clear that a criminal offence has been committed.

Also, and importantly, it is not the role of employers to seek to determine issues in the course of an internal disciplinary process that are properly matters for criminal investigation.

Reputational issues

Where an employee is subject to criminal proceedings, particularly where those relate to his employment, it is likely to give rise to adverse publicity both for the individual and his employer. This may be a particularly important consideration for sector institutions. Adverse publicity may have a significant impact on student perceptions and staff morale, and this may be the deciding factor prompting employers to take swift disciplinary action. If such a decision is taken, legal advice should be detailed, and it is likely that liaison with the police will be recommended to ensure that nothing the employer does jeopardises the eventual trial.

Role of the employment tribunal

The role of the employment tribunal is widely misunderstood. Disgruntled employees may believe that an employment tribunal can find them “not guilty” of an offence, but this is not the case. The tribunal’s focus will be the reasonableness of the employer’s actions – an employee guilty of a criminal offence may be unfairly dismissed and, conversely, an innocent employee may have his or her employment fairly terminated. It is important to understand this important distinction between employment and criminal law; and given the sensitivity of the decisions to be taken, it is important that both employee and employer have the right support and guidance from qualified advisers.

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Reader's comments (1)

A common mistake has been made - using the term 'burden of proof' instead of 'standard of proof'. The burden of proof lies with the prosecution, or in civil matters, the party bringing the claim. The standard of proof is the bar that has to be reached to prove the case. Some good points made about the practicalities of parallel criminal and disciplinary investigations.

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