How to deal with internal workplace investigations and disciplinary proceedings when there are parallel criminal proceedings
“Partygate” is a term we are all getting used to. Its use in the media and public life seems to fluctuate with the news of the day. The Prime Minister, Boris Johnson, and the Chancellor of the Exchequer, Rishi Sunak, received fixed penalty notices on 13 April 2022 due to breaches of lockdown legislation. Given the local government elections (5 May 2022) the Metropolitan police confirmed until they had concluded no further fixed penalty notice would be announced.
“Partygate” will likely continue to rumble on. As of 6 May Sir Keir Starmer is now under investigation by Durham Police for a breach of lockdown legislation.
Earlier in the year when the issue initially arose, there was a huge amount of focus and reference to the “Sue Gray report”, a phrase that like Partygate seems to have entered the public’s vocabulary. Due to the criminal nature of the subject matter of Sue Gray’s report and the subsequent decision by the Metropolitan police the internal investigation has been held up significantly.
This issue is a timely reminder to employers of the complexities and caution that needs to be taken when carrying out workplace investigations on the misconduct of an employee which also potentially constitutes a crime. Perhaps where an employee is alleged to have committed an offence against their employer or perhaps a colleague.
Misconduct
Where an employee commits a criminal offence during their duties this will often constitute serious misconduct, especially where the victim of the alleged offence is the employer (often some form of fraud) or a colleague (perhaps some form of assault). In such cases, an option open to the employer will often be summary termination of employment due to gross misconduct.
Whilst an employer may be certain that the employee has committed a criminal offence it is crucial that a thorough fair and reasonable workplace investigation and disciplinary process is undertaken. Failure to do so can easily lead to an unfair dismissal finding.
The burden of proof that an employer must reach in deciding that its employee is guilty of misconduct is a fairly well-trodden three-step test:
(1) Did the employer have an honest belief that the employee carried out the alleged misconduct?
(2) Was that belief reasonably held?
(3) Was there a reasonable workplace investigation?
Investigation
In misconduct matters involving a criminal element, the reasonableness and fairness of the investigation are crucial. Case law has set out that where the alleged misconduct is a criminal offence the standard and thoroughness of the investigation need to be high (A v B [2003] IRLR 405 – https://www.bailii.org/uk/cases/UKEAT/2002/1167_01_1411.html). This stands to reason given that a finding of misconduct and the belief that the employee has committed the offence can and will have a potentially disastrous impact on the employee’s future career. In regulated sectors, such a finding could lead to the individual being struck off or prevented from working.
Key considerations when carrying out a workplace investigation:
(1) Make sure that the internal disciplinary policy is suitable and that there is a contractual right to suspend the employee in question.
(2) Ensure that the individual appointed as the investigating officer is experienced and/or trained in undertaking detailed and serious workplace investigations.
(3) It is crucial for the fairness of the investigation and the subsequent disciplinary proceedings that the investigating officer maintains a neutral standpoint. Case law requires that as much focus should be given to evidence that exculpates the employee as is given the incriminating evidence.
(4) Employers may consider outsourcing the investigation to an external HR specialist with experience in undertaking workplace investigations. Doing so would help ensure the absence of inherent bias that could be held by a senior employee, manager or director of the company.
The investigating officer should not be placed under any form of pressure as part of their investigation and similarly, they should not place any undue pressure on those that they may interview as part of their workplace investigation.
Once the investigating officer has completed their investigation they should be asked to produce an investigation report which provides their view on facts show – whether they believe there is sufficient evidence to suggest that the alleged actions took place. Their findings should be linked to the evidence uncovered as part of their investigation. The investigating officer should not comment on whether they believe the employee to be guilty of misconduct or what sanctions they believe should be taken. These are the decisions of the disciplining officer.
Disciplinary proceedings
On the basis that the workplace investigation demonstrates the alleged misconduct did take place, the employer should then appoint a disciplining officer. The investigating officer’s role will then cease, save that they may be asked questions to clarify elements of their investigation report if necessary.
The employee in question should then be invited to a disciplinary meeting having first received copies of all relevant evidence. The employee in question should be allowed to be accompanied by a colleague or trade union representative.
The disciplining officer will then need to consider the above three tests – do they honestly believe the employee committed the misconduct, is their belief reasonably held based on a reasonable investigation. If all points are satisfied then the finding of misconduct can be made. They will then need to consider what sanction would be within a reasonable range of responses. Where the misconduct is a criminal offence then summary dismissal is often a reasonable sanction.
The dismissed employee should be given the right of appeal. The appeal should usually be heard by someone more senior than the disciplining officer.
Timing
An obvious question to ask is when should the internal disciplinary process happen?
It may seem logical to wait until the criminal case has concluded – where the employee is found guilty in a criminal court.
Employment law, however, does not require an employer to wait (North West Anglia NHS Foundation Trust v Gregg [2019] EWCA Civ 387 – https://www.bailii.org/ew/cases/EWCA/Civ/2019/387.html). There are many reasons for this but the key is that criminal proceedings can take months sometimes years to conclude. It is not reasonable to expect an employer to wait for such time when they will be paying the employee whilst on suspension and their role may not be capable of being filled.
Case law has made clear that in almost all cases an employer doesn’t need to wait for the conclusion of the criminal matter before acting. The only real exceptions would likely be where the internal investigation may to some extent overlap, interfere or somehow contaminate the police investigation. This appears to be the reason why Sue Gray’s full report has been delayed in its publication and release.
As mentioned above employers need to be thorough and open-minded when conducting workplace investigations, they also need to be cautious and tread carefully and should consider the following:
(1) Establish a dialogue with the relevant police officer leading the investigation. This is to help ensure that nothing is done by the employer which may impact the police’s investigation and work.
(2) Be aware that evidence produced and obtained during the investigation may be admissible in the criminal proceedings.
(3) Be conscious of the fact that the employee in question may not provide any information due to advice from their criminal solicitor. Where an employee is not responsive they should be informed (during the investigation and disciplinary stages – ideally in writing) that they have the opportunity to put forward their side/case/explanations and if they do not then the employer will need to consider the evidence they have available to them, which will include the silence of the employee in question. This should be made abundantly clear to the employee to avoid subsequent arguments that they were unable to put forward their version of events.
Summary
This is a potentially nightmarish scenario for any employer. Disciplining an employee for potential gross misconduct is unpleasant enough but when the complexities of parallel criminal proceedings are thrown into the mix this can make the process very difficult and stressful.
Employers must tread carefully and be prepared that such issues may take time to resolve and will likely be costly. Such costs are likely to pale in significance to the cost of long-winded proceedings in the employment tribunal.
We would advise all employers reading this article (whether or not they are facing such issues) to review their contracts of employment and disciplinary policies (often part of a staff handbook) to ensure that they are up to date and effective.
At GA Solicitors we have experience in assisting employers in navigating such complicated matters so please do not hesitate to contact either Rob Zacal (Robert.zacal@gasolicitors.com / 01752 513549) or Kayleigh Arthurs (Kayleigh.arthurs@gasolicitors.com / 01752 203521).
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