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Disciplinary Investigations and Criminal Investigations – where is the line?

SRM
BY Sophie Macphail
Employment Law & HR

The interaction between criminal investigations and disciplinary hearings can be a tricky area to negotiate and can often lead to differing results.  In simple terms, the burden of proof is different in each matter.

Whilst criminal investigations may not proceed because a case cannot be proven ‘beyond reasonable doubt’, it may still be reasonable for an employer to dismiss when looking at the facts on a ‘balance of probabilities’. However, does an employer need to postpone their internal disciplinary process if there is an ongoing police investigation?

The Court of Appeal provided some clarity in the recent judgement in North West Anglia NHS Foundation Trust v Gregg.  In this case Dr Gregg was facing serious allegations following the deaths of two patients – which he vehemently denied.  He was suspended on full pay and a police investigation commenced. 

Stemming from this, Dr Gregg raised a High Court action seeking an injunction against his employer to, amongst other things, stop them commencing internal disciplinary proceedings against him.  At first instance the injunction was granted however, this was overturned on appeal.

On this point the Court of Appeal was clear that an employer considering dismissing an employee (or starting a disciplinary process) does not usually need to wait for the conclusion of any criminal proceedings before doing so. 

Practical Considerations

As with so many elements of employment law, there are a few areas to be wary of.  Although uncommon, complications can arise if the police do not want an employer to investigate for fear of prejudicing their own enquiries and ‘rehearsing’ witnesses.

When facing such a scenario, consider:

  • Whether the conduct objectively justifies disciplinary action – a police investigation, criminal charge or conviction related to something which was not in the course of employment is not usually a reason for disciplinary action, unless it brings the organisation into disrepute or there are other extenuating circumstances.
  • Assuming it does impact on the employee’s suitability to do their job and their relationship with the employer, work colleague or customers, consider the timing of any disciplinary proceedings and whether these would potentially prejudice the employee in the ongoing criminal investigation.

In this area there are no hard and fast rules: it may be reasonable to proceed with the disciplinary action, but sometimes it is reasonable to postpone it. Whilst the employer has wide discretion when deciding whether disciplinary action should proceed concurrently with a police investigation (subject to any obligations imposed by the police), it is advisable to fully consider the position of both parties and document this to give a contemporaneous account of your thought process behind the decision to discipline.

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