What to do when the Police come knocking?

When an employee is facing both a criminal investigation and an internal disciplinary hearing, the employer has a wide discretion whether to continue with its process or postpone.

The Facts

In Secretary of State for Justice –v- Mansfield, Mr Mansfield was employed as a prison officer at HMP Pentonville. In April 2006 allegations were made against him of “orchestrating violence among prisoners and planting drugs on a particular prisoner”. Mr Mansfield was suspended and the matter referred to the police. The first allegation was dropped before the case went to trial and on the basis the Crown Prosecution Service offered no evidence against Mr Mansfield in respect of the second allegation, the judge gave a verdict of not guilty. This was July 2007.

The employer put its internal investigations on hold during from April 2006 to July 2007, save that the Claimant attended a meeting in June 2007 where the employer informed him that his suspension on the planting of drugs charge would continue but the orchestrating violence charge would be dropped.

On 2 August 2007 investigation terms of reference were issued by the employer to its Investigation Officer, Governor Adebanjo. The investigation was due to end on 30 August 2007 but in fact it did not begin until 28 August 2007 and did not report until 28 October 2007. On the basis of this report, the Governor Leader wrote to the Claimant to say that the disciplinary charge would proceed and his suspension would continue. A number of issues arose between the Claimant and the Prison on the organisation of the disciplinary hearing and it did not start until 23 January 2008. The Claimant was dismissed on 6 February 2008. That decision was upheld twice on appeal. A claim for unfair dismissal was issued on 27 November 2008.

The Tribunal’s unanimous decision was that the Claimant had been unfairly dismissed. Their reasons rested on two issues: the first is that there had been a lengthy and unacceptable delay in the proceedings and second, that the employer did not genuinely believe that the Claimant was guilty of misconduct. The Respondent appealed.

Employment Appeal Tribunal

On the issue of delay, the EAT accepted that in such a case Tribunals need to consider the length of the delay and the reasons for it. The EAT also accepted that it was not essential that prejudice to the Claimant of the delay be shown. The EAT took the view that the employer’s decision that the disciplinary hearing should be postponed while the police were still gathering evidence and while a Crown Court prosecution was under way, was entirely proper in the circumstances. ~
On the second issue of the employer’s reasonable belief, the EAT referred to the case of British Home Stores v Burchell [1980] which makes clear that the employer must show that belief in the employee’s guilt was made on reasonable grounds following a reasonable investigation. In the present case, the Tribunal found in “emphatic terms” that the investigation was thorough and therefore the tribunal had substituted its decision for the employers; something it is not allowed to do. The employer therefore succeeded on both grounds of appeal.

Practice Points

This decision illustrates the difficulty for employers where an employee is facing both an internal disciplinary procedure as well as a criminal investigation. The EAT has highlighted that employers have a wide discretion to decide whether to continue with its own procedures or to wait until criminal investigations have concluded. In this case waiting was seen to be beneficial to the Claimant given that one of the allegations was dropped for the purposes of the internal disciplinary procedure. However, employers should be open and clear with the employee as to how it intends to manage the internal procedure. The employer’s discretion should be used fairly and reasonably in all situations. Employers should look at their Disciplinary Policies to ensure there is reference to criminal investigations and to give themselves a wide discretion over whether to carry on with proceedings or wait till the outcome of criminal investigations.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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