UK: Employers Can Discipline Workers Before a Criminal Investigation Ends

 

By Lisa Rix and Mark Callaghan May 9, 2019
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​The United Kingdom (U.K.) Court of Appeal recently confirmed that employers usually can conduct internal investigations and disciplinary procedures when an employee is also subject to related criminal proceedings.

If a worker is suspected of misconduct that could amount to a criminal offense, the employer will need to decide if it should carry out its own internal investigation and disciplinary procedures concurrently with the criminal investigation or wait for the latter to conclude first.

Usually, an employer will not want to wait—criminal proceedings can take months or years, and suspending the employee on full pay during this period is undesirable. The statutory Acas (Advisory, Conciliation and Arbitration Service) Code of Practice, which sets out practical guidelines for employers to follow when carrying out discipline, requires the employer to carry out an investigation and hold any disciplinary hearing "without unreasonable delay." And the nonstatutory Acas Guide on discipline and grievances at work provides that "where the matter requires prompt attention, the employer need not await the outcome of the prosecution before taking fair and reasonable action."

Court of Appeal Limits When Disciplinary Procedures May Be Challenged

Employees nevertheless still may contest discipline conducted at the same time as criminal proceedings.

In North West Anglia NHS Trust v. Gregg, an employer and then the U.K. Criminal Prosecution Service investigated a doctor following the death of a patient under his care. After the doctor's arrest and release on bail, the employer initiated an investigation into his care of a second patient.

The doctor obtained a court order requiring his employer to halt this further investigation temporarily pending the outcome of criminal proceedings. The court held that if the employer continued with the disciplinary procedures, it would breach the employer's duty to maintain trust and confidence. Under U.K. law, every employment contract provides that neither employer nor employee will act in a manner likely to damage the trust between them.

The court's decision was a surprising one, given guidance provided in the Acas Code and elsewhere. Perhaps unsurprisingly, therefore, the U.K. Court of Appeal allowed an appeal and decided that a court should intervene to prevent an employer from continuing with its disciplinary procedures only if these processes will result in a miscarriage of justice in the criminal proceedings. It further confirmed that an employer will risk breaching the duty of trust and confidence only when there is no reasonable cause for the employer's conduct.

[SHRM members-only toolkit: Introduction to the Global Human Resources Discipline]

Professional Pointer: In general, employers should feel confident to conduct internal disciplinary investigations when criminal proceedings are pending. But tricky issues can arise when the police or the prosecutor requires significant cooperation or assistance from the employer; in those situations, a more cautious approach may be advisable.

Lisa Rix and Mark Callaghan are attorneys with GQ|Littler in London.

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