The Police (or a professional regulator) are investigating an Employee – What should I do?

There are times when an employee’s behaviours will draw the attention of the police or a regulator (such as Social Work England/Solicitors Regulation Authority/General Medical Council). This can occur either in the private life or due to something they have done at work. The involvement of the police can also cause unintended stress when dealing with an employee and any disciplinary process, to help navigate this we have set out the points to consider below.

There are two ways this can arise:

1. The police are investigating conduct outside the workplace (the more common scenario)
2. Conduct in the workplace (likely that it is the employer who has reported the matter to the police).

Conduct outside the workplace – should I investigate?

This is the more common scenario; the police or regulator will be investigating one of your employees regarding something they have done outside of work. As such, it will need to be carefully considered if the alleged behaviour triggers your own disciplinary process.

Things you should consider over the alleged conduct are

• Does it relate to any conduct at work?
• Is their ability to undertake their work impaired?
• Has their suitability to do the role been affected?
• Are interpersonal relationships with colleagues affected?
• Is the employer’s reputation damaged or likely to be damaged?

What also needs to be considered is how the matter interplays with the work environment:

• Is the matter a relatively low-level incident such as excessive speeding?
• Is it something more serious such as sexual misconduct or death by dangerous driving or fraud?
• What does the employee do?
• Is the employee at risk, from others, because of the allegations made against them?
• Or does the employee work in a relatively junior role where these matters are unconnected?

Are the allegations suitably connected to the employee’s employment? It is recommended that an investigation is undertaken to consider any connection and, if any disciplinary action is warranted.

The criminal investigation and the internal investigation are separate processes. The employer is not required to wait for the outcome of the criminal investigation before starting an internal investigation. The Employer may be required to postpone the internal investigation only in the event that the internal investigation gives rise to real danger of injustice. As an employer, you are reminded of Paragraph 11 of the ACAS Code which places and obligation on employers to undertake disciplinaries “without unreasonable delay whilst allowing the employee reasonable time to prepare for the meeting”.

Investigations should take place to collect the facts as far as possible, this will involve you carrying out your own investigation and not relying solely on the police. If you are considering that dismissal could be a possible outcome of the process, any delay is likely to call into question the fairness of the process.

Disciplinary action

Just because an employee is charged, prosecuted or even convicted, this does not remove the need for you to follow your own disciplinary process in a fair manner.  There are times when an employee will refuse to co-operate during a disciplinary process. In this situation it is still possible for the employer to decide about the employee, based on the evidence it has. It is vitally important that the decision-making officer also looks for any mitigating or exonerating evidence about the employee as well for any incriminating evidence.

Many employees will think that because the investigation has ended or not continued, they are exonerated and not subject to discipline in the workplace. You have no obligation to follow an outcome by the police or regulator. Just because an employee is not criminally liable, does not mean they are in the clear of a disciplinary sanction at work.

As with all such misconduct cases, if the decision is taken to dismiss, it is important that you establish that there is a genuine and reasonable belief in the employee’s guilt that built upon having conducted a reasonable investigation, and that the level of investigation carried out was within the band of reasonable responses for the dismissal to be fair and the decision to dismiss is based on all the evidence to hand.

Criminal or regulatory misconduct in the workplace

This is a far easier situation than conduct outside of work; you will have most likely already referred this matter to the police or regulator. A disciplinary is already likely either underway or in serious consideration. As stated above, it is crucial that these investigations are independent, you do not need to wait or put on hold its own disciplinary process whilst the external investigations are ongoing.

Key Takeaways:

1. An external investigation does not automatically trigger disciplinary actions, especially if there is no impact on the worker’s ability to carry out the job.
2. Internal investigations should not be paused if a criminal investigation is initiated. Employers should launch internal investigation.
3. Criminal charge does not automatically trigger termination. An employer ought to conduct a reasonable investigation to assess whether dismissal is appropriate.
4. Employers ought to be careful when relying on external (e.g. police investigation). They ought to conduct their own internal investigation.
5. If the employee has been acquitted, you do not automatically have to interrupt your own internal investigation. The two processes have different burdens of proofs which may lead to different outcomes.
6. In case of internal misconduct, employers should assess whether involving the police is the best approach. Could argue a breach of trust and confidence if police are involved in a “low level” matter.

Sharpe Pritchard has an experienced team of employment solicitors who regularly advises public sector clients on all manner of contentious and non-contentious employment law matters. Please contact David Leach or Angelica Botta if you wish to discuss the implications of this article in more detail.

This article is for general awareness only and does not constitute legal or professional advice. The law may have changed since this page was first published. It is recommended that specific professional advice is sought before acting on any of the information given. If you would like further advice and assistance in relation to any of the issues raised in this article, please contact us today by telephone or email enquries@sharpepritchard.co.uk.