In a recent decision, the EAT has overturned the ruling of the Tribunal at first instance that a decision to dismiss an employee was unfair where a delay of 20 months occurred between the alleged misconduct and the date of dismissal.

In the case of Secretary of State for Justice v Mansfield, a Prison Officer was suspended in April 2006 on suspicion of 2 offences: orchestrating violence amongst prisoners and planting drugs on a prisoner. The first claim largely rested on the evidence of prisoners whilst the second was largely based on the evidence of Mr Mansfield’s co-workers. An internal investigation was commenced but was then paused whilst a police investigation took place. The claim of orchestrating violence was dropped by the police but the second charge continued until trial in April 2007 when the Claimant was found not guilty.

Following this, a thorough investigation into the allegation of planting drugs (the first charge having also been dropped by the employer) was commenced in August 2007. A 3 day disciplinary hearing took place and the Claimant was dismissed in February 2008. Mr Mansfield then brought a claim for unfair dismissal.

The Tribunal held that the dismissal was unfair due both to the delay which had taken place and because it considered that the dismissing officer had not had a genuine belief in the Claimant’s guilt. However, on appeal, both of these points were overturned by the EAT and the Claimant’s claim of unfair dismissal was dismissed in its entirety.

Specifically, in relation to the first point, the EAT held that there had been no basis for the Tribunal to find that the dismissal was unfair on the grounds of delay, particularly as it was unable to point to any prejudice caused by the delay. The EAT found that the delay had not impacted on the internal investigation which was subsequently carried out by the employer as the main witnesses had all been interviewed at the time of the incident in 2006. By the time of the investigation all parties had also seen the police statements and therefore there was more evidence than is usually available for a disciplinary hearing. The EAT stated that, “a decision maker forming a view on whether disciplinary proceedings should be continued alongside a criminal investigation has a wide discretion” and it also held that it would be very unusual for a decision to postpone disciplinary proceedings, whilst the employer is continuing to pay the employee, to be criticised on the grounds of delay.

This case will allow a degree of flexibility to employers who are uncertain whether or not to run an internal disciplinary procedure consecutively with a police investigation. In this particular case a relevant Prison Order stated that, in general, disciplinary proceedings should be carried out even where a criminal investigation is underway, except in 3 situations, one of which was where the main evidence came from a prisoner. The Tribunal and the EAT both agreed that it had been proper for the allegation of orchestrating violence not to be internally investigated until this had been dropped by the police. However, even though in accordance with its own procedure, the employer should have investigated the second complaint of planting drugs straightaway, the EAT was satisfied that the employer had discretion over how to act and considered that its decision not to investigate was in order to avoid prejudicing the criminal proceedings and was reasonable in the circumstances. Therefore, employers may not be bound by the wording of their own internal procedures on this point. However, each case will be judged on its own facts.