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Disciplinary Procedures and Police Investigations

25 April 2019 | Cecily Donoghue

Solicitors in the Bristol employment law team, Nick Jones and Cecily Donoghue, consider disciplinary procedures in  North West Anglia NHS Foundation Trust v Gregg.

In this case the Court of Appeal gave helpful guidance for employers that they do not need to delay internal disciplinary investigations if the matter is also being investigated by the police.

The Court held that in almost all circumstances an employer must not postpone a disciplinary hearing pending the outcome of a police investigation into an employee.

This case also addressed the issues of:

  • termination on the grounds of non-registration; and
  • entitlement to pay during interim suspension.

In this case a doctor was facing disciplinary, regulatory and police enquiries after there were two patient deaths. Whilst the police investigation commenced, the doctor was temporarily suspended. His licence to practice as a doctor was also temporarily withdrawn.  At this point the employer sought to stop his pay.  The doctor bought proceedings in the High Court.

The High Court granted an injunction. This prevented the employer from continuing its disciplinary process until the criminal investigations had ended.  This decision was based on the breach of trust and confidence that would happen if the disciplinary process continued at that time.

However, the Court of Appeal overturned the injunction, noting the severe test for a breach of the implied term of maintaining trust and confidence.    The question was whether the employer’s conduct was sufficient to destroy or seriously damage the relationship and, if it was, whether there was any proper cause for doing so.

In this instance the employer was following its own contractually binding disciplinary procedures. Starting one process didn’t prevent the employer from relying on another.  The employment contract allowed for alternative grounds of termination.  The Court of Appeal also held that it would not have been wrong to side step the disciplinary process.  The employer could consider termination on the basis of the suspension from practice and the loss of licence.

Regarding the issue of pay during the interim suspension, the Court of Appeal agreed with the High Court. During the interim suspension the salary should continue to be paid.  This was because there was no contractual entitlement to deduct salary and no exceptional circumstances that applied.

Employer tips: dealing with employment issues that involve the police.

Each issue should be considered carefully, on its own facts, with the benefit of legal advice. However to help employers navigate the tricky issues involved in potential criminal matters, we’ve summarised some of the common queries employers have raised when dealing with matters involving the police after an issue has arisen at work.

Query Tip

Does a police investigation mean that we need to commence disciplinary proceedings?

 

No, not necessarily and particularly where there is no impact on the worker’s ability to carry out their role or deal with colleagues or customers.

Carefully consider whether there is a connection between the allegation and the worker’s role, prior to deciding whether to instigate disciplinary action. As an employer, you should only consider matters which impact on the worker’s ability to carry out their role.

Should disciplinary procedures be put on hold pending the outcome of criminal proceedings?

As outlined in the case above, no.

Disciplinary procedures should be conducted without delay and police investigations / trials can often take months or years to resolve. There is therefore no general requirement to place disciplinary procedures on hold whilst criminal matters are ongoing.

Can we make a decision regarding someone’s employment based on a criminal charge?

No, it is insufficient for an employer to simply interview the employee as part of a preliminary investigation and then dismiss them on the basis that they have been charged by the police.

Once the charges have crystallised, it is necessary that the employee is given the opportunity to attend a disciplinary interview and reply to the allegations, before the employer decides whether or not there is a disciplinary case to answer.

Whether dismissal is appropriate will depend on the offence and the impact on their role. Don’t forget that the usual rules on unfair dismissal will apply to a dismissal of a member of staff with over 2 years’ service.

Can an employer rely on a police investigation?

Yes but not blindly. An employer should carry out their own investigation and disciplinary hearing and should not ask the police to do so on their behalf.

However, if a police investigation uncovers wrongdoing by the employee, the employer may rely on the information supplied by the police when conducting its disciplinary process, subject to the employer first considering the reliability and integrity of the information.

Can disciplinary proceedings continue after a criminal acquittal?

An employer’s disciplinary process and a criminal investigation are entirely separate matters with different tests of culpability. Therefore an employer is not bound by the outcome of a police investigation or criminal trial.

There will be cases where it is appropriate for an employer to continue it’s own disciplinary investigation after the police have decided not to press charges or have acquitted the individual.

As an employer, do I need to involve the police in an issue?

Not necessarily but of course this will depend on the incident that has taken place.

Employers must be extremely careful not to subject their employees to the heavy burden of criminal proceedings without first very carefully considering the matter.

If you have questions or require advice on the issues raised in this article, or any other employment law matter, contact our Employment Solicitors in Bristol.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

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