Disciplinary Process - Delay due to Criminal Charges

Thursday 26 July 2018

Should employers delay their disciplinary process pending criminal charges?

Under normal circumstances employers must carry out their own internal investigation and follow a fair procedure before dismissing an employee or taking any other disciplinary action. However in the recent case of Gregg -v- North West Anglia NHS Foundation Trust [2018] EWHC 390, the High Court granted an injunction to a doctor to stop his employer (NHS Trust) from proceeding with their internal disciplinary process, until CPS had made a decision whether or not to charge the employee with criminal offences on allegations of having inappropriately hastened the death of patients in his care.

The High Court’s findings were that, the employer’s refusal not to delay its disciplinary procedures had breached the implied term of mutual trust and confidence and that it was unreasonable for the employer to penalise the employee for any operational delays on part of the police and CPS.

A fairly common problem faced by employers where their employee is being subject to a criminal investigation or charges is that the employee will often be advised by his/her lawyers not to participate in the employer’s disciplinary process. This was the case in the above matter and where the employee chooses not to co-operate with the internal disciplinary procedure it would be prudent to make the employee aware that the matter being investigated could result in a potential dismissal outcome. His / her co-operation is required but if the employee still refuses to co-operate, the employer would need to consider whether the material evidence in the absence of an explanation is strong enough to justify dismissal without waiting. If there are doubts, then it would be prudent to wait as the employer would have wide discretion regarding whether to postpone the disciplinary process - Secretary of State for Justice v Mansfield UKEAT/0539/09/2403.

Although each case will turn on its own facts, when considering whether or not to delay internal disciplinary proceedings in these circumstances, the employer must look at all of the circumstances of the case to include, amongst other things, material evidence as to damage to its reputation. For instance, if the matter went public, the ability of the employee to carry out his /her job together with his /her working relationship with work colleagues and third parties, the serious nature of the alleged incident and thus balance its need to conclude the disciplinary process against the possible prejudice to the employee. Any decision made must be exercised in a way that is rational and not impulsive nor unreasonable and taking HR advice and guidance would be recommended.

Jatinder Tara, HR Employment Relations Advisor

Jatinder has a LLB Honours Law Degree and is a qualified Solicitor. With over 22 years advisory experience in Employment law and HR matters, which include Employment Tribunal litigation, he has a sound understanding of issues arising in the workplace environment and aims to deliver clear and concise client focussed advice.

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