The BBC recently launched an investigation into two Strictly Come Dancing stars, after claims of cocaine use. Although we know very few of the details, the move does cast a spotlight on the question of when and if there should be police involvement in workplace issues. Here are our top tips to help HR teams navigate this complex issue.
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Be cautious
Generally, involving the police should not be the automatic response to criminal allegations at work. In Crawford v Suffolk Mental Health Partnership, the Court of Appeal said that employers should not unduly burden their employees. They should not always tell the police. They should only do so if they have a firm belief that the accusation, if true, would be a crime. There should be a careful consideration of all the circumstances of the case. This means that, at the very least, an internal investigation should be conducted into the allegations first to establish the likely strength of the allegations.
The position may be different depending on the sector involved. Employers in regulated industries, such as healthcare, education, or financial services, may have reporting obligations under sector-specific regulations.
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Employment law still applies where the matter may be criminal
Just because a disciplinary allegation may also be a crime does not mean that employment law does not apply. Unfair dismissal rights still apply.
Where the allegation is one of potential gross misconduct an employer would still have to follow the test set out in British Home Stores v Burchell. This requires them to hold a reasonable belief following a reasonable investigation that the employee was guilty of misconduct. The ACAS Code of Practice still applies, as do any internal disciplinary procedures.
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The criminal standard of proof is higher than an employer’s standard
Employers can sometimes make the mistake of making the outcome of any internal disciplinary proceedings dependent on whether the employee is found guilty in any criminal proceedings. This is a mistake. Quite apart from the risk of delay in doing so (see below), it’s important to remember that the criminal standard of proof requires allegations to be proven ‘beyond reasonable doubt’. This is a high burden. In an employment context the employer need only be satisfied that the conduct occurred ‘on the balance of probabilities’ – a lower test. It is perfectly possible that an employer could conclude that an act of misconduct (which is also potentially a criminal offence) occurred but that criminal proceedings for the same offence could result in an acquittal.
Employers should focus on their own internal rules and processes and not get too bogged down in any related criminal proceedings.
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There is no strict requirement to pause internal processes pending the outcome of criminal proceedings
Whether an internal process should be paused for a criminal case’s outcome needs to be looked at on a case by case basis. It may be appropriate to pause a disciplinary investigation while the police investigate and prosecute an employee for the same matter. The case of Secretary of State for Justice v Mansfield supports this approach. Indeed, there are also rare cases (mostly in the public sector) where an employee has obtained an injunction. The injunction stops an employer from continuing with a disciplinary process when a criminal prosecution is pending on the same issue. However, it seems this would only happen if the employee could show that the internal proceedings might harm the criminal case’s outcome.
Balanced against this, criminal proceedings often take several months if not years to come to trial. The Acas Code of Practice requires employers to act “without delay” in relation to disciplinary issues. In Ali v Sovereign Buses, the Employment Appeal Tribunal gave guidance about the choice of waiting for criminal proceedings to finish or moving forward with an internal disciplinary. The EAT noted that it might be impractical for an employer to wait if a criminal case takes many months to come to court. The size of the employer’s business, the nature of the business and the number of employees will all be relevant factors.
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Employers can’t force employees to engage with disciplinary investigations into potential criminal conduct
Where you have police involvement in an allegation of workplace misconduct, a common issue is that employees refuse to answer questions. They do this often on legal advice because they think it could prejudice a pending police interview or trial. If this happens, the employee should be given the opportunity to make a statement but should not be placed under pressure. You can’t demand answers. Doing so could breach the implied term of trust and confidence.
If the employee refuses to make an internal statement due to the risk of incrimination, then this is something you will need to balance when considering whether to pause the disciplinary pending the outcome of the criminal proceedings. The employer can still complete the rest of the investigatory process now. If the employer decides not to pause the process for the criminal case, they must look at all other evidence gathered in the investigation before deciding whether or not to hold a disciplinary hearing.