Question

One of my employees was allegedly seen committing a criminal act outside work by a colleague, and the police are involved. Given that the incident did not happen at work, can I take disciplinary action and, if so, do I need to wait until the police investigation is finished?

Answer

As the incident did not occur at work, whether or not you (as the Employer) can discipline this employee depends upon whether the alleged incident has any effect 'on the employee's suitability to do the job (and/or) their relationship with their employer, colleagues and customers'. (ACAS Code of Practice on Discipline and Grievance procedures). The fact that an employee has been charged with a criminal offence does not in itself normally justify disciplinary action (ACAS Code). If the alleged incident does have employment implications, employers are expected to investigate it themselves and come to their own conclusions about whether disciplinary action is necessary. The investigation should be thorough and even handed. If the consequences of a misconduct finding are serious for the employee (for example loss of career) the investigation should look for evidence in the employee's favour as well as against them. Furthermore the non statutory ACAS Guide advises employers not to ask the police to conduct the investigation on their behalf or be present at any disciplinary meetings. Employers should also consider suspending the employee for the duration of any investigation and disciplinary proceedings (on full pay unless there is a contractual right to suspend without pay). Failing to do so may mean it is harder to justify any subsequent disciplinary action.

There is no hard and fast rule which requires employers to wait until the outcome of a police investigation before taking disciplinary action. The Employment Appeal Tribunal in the case of Secretary of State for Justice v Mansfield, held that an employer has a "wide discretion" when considering whether disciplinary proceedings should take place alongside a police investigation. As police investigations can take months, most employers will be justified in taking disciplinary action before the outcome of any police investigation is known; provided they have carried out a thorough investigation and have evidence to support a reasonable belief in the employee's guilt. It may be appropriate to postpone the disciplinary hearing while the police investigation is ongoing where required by the disciplinary procedures or where incidents of misconduct have to be reported to a statutory or regulatory body. If the employee is suspended on full pay consideration will need to be given as to the cost of delaying disciplinary proceedings. However suspending an employee without pay for a lengthy period could lead to the employee resigning claiming breach of trust and confidence. Employers must also ensure that disciplinary proceedings are resumed as soon as reasonably practicable following the conclusion of a police investigation. Otherwise, an employee could claim there was an unreasonable delay which prejudiced their case, thereby rendering any subsequent dismissal unfair.

Finally the employer will need to consider the appropriate disciplinary penalty. A criminal allegation does not in itself justify dismissal. Which disciplinary penalty will be appropriate will depend on the nature and seriousness of the allegation and its effect on the employees job or employer's reputation.