DISCIPLINARY PROCEEDINGS - 18.06.2018

How should you handle criminal conduct?

CRIMINAL OFFENCES AT WORK

When an employee commits a criminal offence at work, you’re likely to be justified in treating it as misconduct, probably gross misconduct. You should therefore address the matter as you would any other allegation of serious or gross misconduct at work, i.e. by commencing an investigation and invoking your disciplinary procedure.

OFF-DUTY CRIMINAL OFFENCES

However, where the alleged offence was committed by the employee outside the workplace when they were off duty, that’s not necessarily a reason for disciplinary action, even if the police are involved and even if the employee is charged with and then subsequently convicted of a criminal offence. According to the Acas Code of Practice on Disciplinary and Grievance Procedures (the Acas Code ) (see Follow up ) “consideration needs to be given to what effect the charge or conviction has on the employee’s suitability to do the job and their relationship with their employer, work colleagues and customers”.

Pro advice 1. The main consideration is whether the offence is one that makes the employee unsuitable for the type of work they do for you. You’ll need to consider all the facts, including the nature of the offence, the nature of the work the employee undertakes and the extent to which it involves contact with other employees or customers and the employee’s seniority and status.

Pro advice 2. Criminal offences involving violence, theft, dishonesty or sexual conduct are the most likely to affect the employment relationship (and therefore justify dismissal), either because of: (a) the particular nature of the employee’s work, for example their job involves a high degree of trust and integrity (theft and dishonesty offences) or involves a position of trust over children or vulnerable adults (violence and sexual offences); or (b) general considerations about damage, or potential damage, to your business reputation, for example the criminal offence is committed by a senior employee working in a high profile role or there is widespread negative media publicity surrounding the case with your business being dragged into it.

Pro advice 3. You’ll still need to carry out an investigation and hold a formal disciplinary hearing, just as you would do if the criminal conduct had happened at work.

Pro advice 4. If the employee is found guilty by a criminal court, or they pleaded guilty, it’s reasonable for you to conclude without further proof that they committed the criminal offence.

ACAS GUIDE

The non-statutory Acas guide on discipline and grievances at work (the Acas guide ) (see Follow up ), which supports the Acas Code , provides the following additional useful advice on criminal charges and convictions, covering both criminal offences at work and those committed off duty:

• you should investigate the facts as far as possible, come to a view about them and consider whether the criminal conduct is sufficiently serious to warrant instituting your disciplinary procedure
• off-duty criminal conduct which has no bearing on employment is unlikely to justify disciplinary action
• where the criminal conduct requires prompt attention, you do not need to await the outcome of the prosecution before taking fair and reasonable action
• where the police are called in, they should not be asked to conduct any investigation on your behalf, nor should they be present at any investigatory meeting or disciplinary hearing
• where an employee, charged with or convicted of a criminal offence, refuses or is unable to co-operate with your disciplinary investigations and proceedings, this shouldn’t deter you from taking disciplinary action - in this scenario, the employee should be advised in writing that, unless further information is provided, a disciplinary decision will be taken on the basis of the information available and could result in their dismissal.

Pro advice 1. The employee might have been advised by their solicitor to say nothing until their trial so as not to prejudice their case, but this doesn’t mean you can’t dismiss them for gross misconduct, based on the evidence that you do have available, if they either refuse to attend a disciplinary hearing or they attend but only respond to you with complete silence or “no comment” . The important thing is that you give them the opportunity to provide an explanation and state their case at a disciplinary hearing and that you’ve first warned them that you intend to take a decision on the available evidence if they do refuse to co-operate.

Pro advice 2. If the employee doesn’t want to volunteer any information to you due to a fear of self-incrimination, don’t try to interrogate them or pressurise them into making any admissions of guilt.

INVOLVING THE POLICE

Where the employee commits a criminal offence at work, it’s really up to you whether you want to involve the police or deal with the matter in-house, but do make sure before going to the police that you have a genuine and reasonable belief that the employee’s conduct is “criminal” in nature. However, if the offence has resulted in someone else having been hurt or you’re subject to regulatory requirements you may have little choice but to inform the police.

Alternatively, the police may already be investigating the employee for an alleged out of work criminal offence. Indeed, the first you might know of the employee’s off-duty criminal conduct is when the police advise that they’re bringing charges, or even later when the employee appears in court or is subsequently convicted.

Where a criminal investigation or proceedings are ongoing, there are no hard and fast rules to apply when determining whether you should press ahead with your own internal disciplinary proceedings or wait until the criminal proceedings have been completed. The starting point is to conduct your own investigation into the allegations and then consider the options available. However, as a criminal case can take many months to come to court, it might be impractical for you to wait before holding a disciplinary hearing and taking a decision on the future of the employee’s employment, particularly if you’re a small business and the employee has been suspended on full pay in the meantime.

In addition, the Acas Code requires you to hold any disciplinary hearing “without unreasonable delay”. So, balance your need to conclude the disciplinary process against possible prejudice to the employee. Do check what, if anything, your policies and procedures say about the situation.

Pro advice 1. If the police advise you that you’re not allowed to investigate whilst their own criminal investigation is ongoing, you don’t have to comply and can continue to conduct your own internal investigation, whilst being mindful of not interfering with the ongoing police investigation.

Pro advice 2. The burden of proof is different in criminal law as the offence must be proved beyond all reasonable doubt. Conversely, in employment law, the offence only needs to be proved on the balance of probabilities, i.e. it’s more likely than not that the employee committed the criminal offence alleged. Plus, the character and purpose of criminal and disciplinary proceedings is entirely different, with different potential results. This means that a gross misconduct dismissal can still be fair even if the employee is never charged by the police, e.g. due to a lack of sufficient evidence, or is subsequently acquitted following a criminal trial. In employment law terms, you must ensure you have an honest belief in the employee’s guilt, which is based on reasonable grounds and after conducting a reasonable, balanced and adequate investigation.

Pro advice 3. The police are unlikely to supply you with any report of their criminal investigation because of data protection considerations, so don’t sit back and do nothing. In any event, the Acas guide advises that the police should not be investigating on your behalf - you need to do your own investigation. Even if the police do supply you with their report and witness statements, take a critical approach to any information you receive from them, particularly if there’s a conflict of evidence which calls the reliability of the information into doubt, and still conduct your own internal investigation. Don’t rely solely on the outcome of a police investigation or on a police report.

Acas Code of Practice on Disciplinary and Grievance Procedures

Acas guide on discipline and grievances at work