If the alleged wrongdoing poses a threat to the business, colleagues or customers, the first step is often to suspend the employee. However, that suspension should not be seen as a penalty; suspension should be kept under regular review, and the employee should continue to receive their salary and benefits as normal. Unpaid suspension may be something that can be agreed with the employee in certain circumstances, but employers should tread carefully.
Employers should carry out their own investigation before any disciplinary action, rather than just waiting for and relying solely on the results of the police investigation.
The accused employee must be given the chance to explain their side of the story before reaching a decision about sanctions. Take advice to ensure that an internal disciplinary investigation does not impede or undermine a criminal investigation that may be running in parallel.
The police may ask to see the evidence that is gathered during the course of the investigation, particularly if the employee makes an admission of criminal conduct. The police may also ask those who took part in the investigation or who gave evidence to it to supply witness statements and to give evidence at trial. The police cannot compel the investigators and witnesses to give witness statements, but can issue summonses requiring them to give evidence at trial, and a court can order disclosure of evidence and investigation reports. An order is likely to be granted unless the evidence has been gathered by a lawyer acting for the employer and is therefore subject to legal professional privilege.
Employers must remember that disciplinary procedures and the Acas Code of Conduct continue to apply in cases involving a criminal aspect. Accompaniment to a disciplinary hearing by the employee's lawyer may be appropriate if the outcome of the process may be career-ending.
After conducting their own investigation, employers do not have to wait for the outcome of criminal proceedings before conducting a disciplinary hearing and/or sanctioning (including dismissing) an employee. Criminal cases may take many months to get to court and waiting for the outcome could cause serious issues for the running of the business.
Employers are not bound by the outcome of a criminal trial. If an employer decides during the disciplinary process that an employee's conduct warrants dismissal, they are entitled to make this decision even if the employee is not charged. Conversely, just because the employee is charged with a criminal offence, that does not give an employer the automatic right to dismiss. Any dismissal must still be reasonable.
Employers may wish to make a (capped) contribution to the cost of legal representation for the employee to defend a criminal case. In the case of regulatory investigations, for example, the interests of the individual and the company may be aligned. The conviction of an employee for a crime committed while carrying out duties for an employer is likely to have a negative effect on the employer's reputation, so access to quality representation may afford the employee a better chance of avoiding being charged, or a conviction. However, it is important to make it a condition that the contribution is kept confidential as there is potential for reputational damage should the employee then be found guilty of an offence.
Susie Al-Qassab is a senior associate in the employment team at Howard Kennedy
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