The Employment Appeal Tribunal has decided, in the case of Gloucestershire Constabulary v Peters, that it was appropriate to grant a stay (sist) of disability discrimination tribunal proceedings for a limited period, pending a criminal investigation into the Claimant's suspected fraudulent sick pay claims.

The claimant, Mrs Peters, was a police officer, employed by the Gloucestershire Constabulary. She brought an employment tribunal claim against the Police for disability discrimination, alleging that they had failed to make reasonable adjustments to accommodate her disability. At the same time, the Police had been conducting an investigation into Mrs Peters' claims for sick pay, in particular whether or not she was actually as ill as she claimed. The Police suspected that her sick pay claims were fraudulent.

This investigation into the alleged fraud was still ongoing at the time of the tribunal hearing and the tribunal proceedings were stayed twice. The Police then applied to the tribunal to have Mrs Peters' disability discrimination claim stayed indefinitely in order to allow the Crown Prosection Service time to consider the possibility of prosecution. The Police contended that the issue of Mrs Peters' disability could not be determined until they had completed their investigations into the alleged fraud, as the results of these investigations would be relevant to determining whether or not Mrs Peters was disabled.

The EAT granted a limited postponement only so as to enable the CPS to finish their investigation and decide whether to prosecute Mrs Peters (not until conclusion of any criminal prosecution). The EAT ruled that the tribunal had been wrong to decide there was not a substantial overlap between the two issues before the tribunal and in the criminal case. The underlying facts in relation to both the criminal investigation and Mrs Peters' Tribunal claim were remarkably similar. The EAT was also satisfied that it was proper for the CPS not to want to reveal all the documents and information in time for tribunal hearing (in order for the Police to plead its defence to Mrs Peters' disability discrimination claim) since this could prejudice the criminal investigation.

Impact on employers

  • Whilst the EAT's decision highlights that there may be circumstances where it will be appropriate for an employer to wait until conclusion of a criminal investigation before being in a position to defend tribunal proceedings fairly, the grant of a stay or sist of proceedings is a matter for the discretion of the tribunal and will not be interfered with lightly by the EAT.
  • Often, as in this case, a stay will be granted until a decision has been made about whether to prosecute and not until any criminal trial has concluded.
  • Employers often have to decide, where there is an overlap between disciplinary matters before them and criminal proceedings, whether to start the disciplinary process or to wait until the outcome of the criminal trial before commencing disciplinary proceedings. Recent case law has confirmed that the employer has a wide discretion in making this decision. However, if the employer does decide to go ahead before the outcome of the criminal proceedings is known, it needs to carry out its own investigation and be satisfied as to the reasons for any dismissal. The outcome of the criminal proceedings usually will then not be relevant to the fairness of the dismissal.