Most employers don’t wish to wait for the outcome of criminal proceedings before conducting a disciplinary hearing, particularly when the employee has been suspended on full pay. Criminal proceedings can take several months or longer, and the ACAS Code requires the employer to hold any disciplinary hearing without unreasonable delay, suggesting that hearings should not necessarily be postponed until court proceedings have concluded (paragraph 11, ACAS Code).
The non-statutory ACAS guide states that “where the matter requires prompt attention, the employer need not await the outcome of the prosecution before taking fair and reasonable action” (page 36).
However, it is important to consider that an employee may refuse to respond to questions during a disciplinary investigation or hearing, often based on legal advice, on the basis that doing so could prejudice a pending police interview or trial, nor should an employer interrogate the employee or pressurise the employee into making any admissions of guilt.
The EAT gave some guidance in Ali v Sovereign Buses (London) Ltd UKEAT/0274/06 indicating that the following factors may be relevant when there are concurrent disciplinary and criminal charges:
- It might be impractical for an employer to wait, if a criminal case takes many months to come to court, before deciding on the employee’s future with the employer.
- The size of the employer’s business, the nature of the business and the number of employees will be relevant. Tribunals recognise that employers, particularly small employers, may be placed in a dilemma when criminal charges are brought against an employee in circumstances relating to their employment.
- Any provision made in the terms of the employee’s employment, including the employer’s disciplinary code, must also be considered.
- There is no rule that, once an employee has been charged with a criminal offence, an employer cannot dismiss them if the employee is advised to say nothing until the trial.
- An employer must offer the employee the opportunity to give an explanation and, if the employer is contemplating dismissal, this must be made clear to the employee.
- Where the employer only learns of a problem when the police advise that they are bringing charges against an employee, the employer should still undertake an investigation. The employee should be given the opportunity to state their position, even if they do not take that opportunity and the investigation and interview are fruitless.
- In extreme cases, the circumstances may be so blatant (for example, where an employee has been caught “red-handed”, arrested and charged) and sufficiently brought to the attention of the employer without the need for further investigation.
In North West Anglia NHS Foundation Trust v Gregg (2019), the court highlighted the following principles:-
- An employer considering dismissing an employee does not usually need to wait for the conclusion of any criminal proceedings.
- An employer does not usually need to wait for the conclusion of criminal proceedings before commencing or continuing internal disciplinary proceedings, although such a decision is open to the employer.
- The court will usually only intervene if the employee can show that the continuation of the disciplinary proceedings gives rise to a real danger of a miscarriage of justice in the criminal proceedings if the court does not intervene.
If a matter “requires prompt attention”, ACAS advises that employers may procced with disciplinary action even if criminal proceedings are ongoing, whilst being mindful that employees may decline to answer questions based on legal advice.
Ultimately, disciplinary matters are distinct from criminal matters and, as long as their actions are fair and reasonable, employers are not required to await the outcome of criminal proceedings before proceeding with their own investigations or hearings.
