UK: Client Briefing: Dealing With Employees Who Are Being Investigated By The Police

This client briefing just provides an overview of the law in this area. You should talk to a lawyer for a complete understanding of how it may affect your particular circumstances.

An employee is under investigation by the police: to what extent should the employer get involved? How should an employer deal with any parallel internal disciplinary investigations? And when should you report an employee to the police in misconduct cases? We set out below some helpful principles to follow when faced with these difficult issues.

Considering suspension and disciplinary investigation

There should be no knee-jerk reaction to suspend or dismiss the employee. A decision should first be made as to whether the criminal allegations have implications for the employment relationship. This may require an initial investigation including speaking to the employee and/or seeking information from the police. It is very important to maintain confidentiality in these initial investigations (see data protection considerations below).

Suspension should only be imposed if there is a risk to the integrity of your investigation, a risk of harm to customers or service users, to the employee, to other employees or to the organisation as a whole. Suspension without good reason is likely to be found to be a detriment to the employee (for example in a discrimination claim). If taking no immediate action poses an unacceptable risk, you should consider alternatives to suspension such as a change of role or place of work or increasing the level of supervision of the employee. If you decide to suspend, you should make a file note of the reasons for the suspension.

There may be cases where it is not necessary to commence an internal investigation if the criminal allegations have no impact on the employee's role or on their work with colleagues, customers or service users. For example, an allegation of reckless driving might have no link to an employee's ability or suitability to carry out their role. On the other hand, some allegations may give rise to unacceptable risks to the organisation, including reputational risks.

Should the organisation report an employee to the police or other agencies?

There will be some cases where information comes to light about the misconduct of a member of staff at work which clearly indicates that a crime may have been committed. In such cases, the employer should report the matter to the police. However, in many cases, the employer will be unclear as to whether the allegations amount to a crime. Should you report to the police in such cases?

The courts have considered this question and provide useful guidance. An employer who refers "suspect or frivolous allegations" to the police could by doing so breach the employment contract. Employers should be aware of the career consequences for an employee of being under the cloud of possible criminal proceedings. The Court of Appeal has stated that an employer should not refer allegations of misconduct by an employee to the police without "the most careful consideration" and only where there is a genuine and reasonable belief that the alleged conduct could be classed as criminal. You should take into account the strength of the allegations, the nature of the alleged offence and any concern for others in the workplace (including service users) when deciding whether to report the matter to the police.

You should also consider any particular duty on your organisation to report the employee to other agencies, for example where the employee works with children or vulnerable adults and safeguarding concerns arise from the police investigation.

How might criminal allegations impact on internal processes?

If you decide that the allegations do impact on employment, an internal investigation should be carried out before making a decision about disciplinary action. Any investigation should follow the statutory ACAS Code on Disciplinary and Grievance Procedures. This, and the non-statutory ACAS guidance, includes some assistance on dealing with criminal allegations.

It is good practice to make and maintain contact with the police in order to gain any relevant information and to ensure that the internal investigation does not interfere with the criminal investigation.

Where the allegations are potentially career ending, it is extremely important that the organisation ensures its investigation is thorough and its processes are fair and non-discriminatory. It is possible that the right to a fair trial (embodied in the European Convention on Human Rights) could be engaged in disciplinary proceedings in circumstances where the outcome of the process could lead to a professional being barred from the profession. It is normally the case that legal representatives are not allowed to attend disciplinary meetings. However, employers should consider carefully any request that the employee's lawyer attend the disciplinary hearing in cases which may lead to a professional bar.

You should bear in mind that the standard of proof in disciplinary proceedings is not as high as that for criminal trials. It is possible that an employee could be found not guilty in court where the evidence is not sufficient to prove beyond reasonable doubt that the employee has committed a crime. However, your internal investigation may provide evidence which indicates that it is more likely than not that the employee committed a breach and on that basis you may decide to proceed to a disciplinary sanction such as dismissal.

Because of the different criteria involved in the criminal and HR processes, it is important that employers do not simply rely on the decisions of the police, the CPS or on the outcome of criminal proceedings in making a disciplinary decision. The employer must come to its own decision based on the evidence before it (although this will include any information provided by the police). ACAS advises that, where a disciplinary process cannot await the outcome of a police investigation, an employer can complete the procedure based on its own investigation and hearing.

An employee may, often on the advice of their solicitor, refuse to respond to questions put to them in the disciplinary process on the basis that questions could prejudice an upcoming trial or police interview. In such a case, the employee should still be given the opportunity to put their case, perhaps by means of a prepared written statement. On occasions, a parallel police investigation may hold back an internal investigation as evidence may be held by the police and not accessible to the employer. In such cases, it may not be possible to carry out the investigation and disciplinary hearing until criminal proceedings have taken their course. This can leave employers in a state of limbo for some time, often with the employee on long term paid suspension.

There may come a point at which you will need to consider whether the disciplinary process can continue on the basis of evidence held by the employer. Tribunals recognise that employers may be placed in a dilemma in such cases. A tribunal is more likely to find that an employer has reasonably moved to dismissal before criminal proceedings are complete if there are compelling business reasons to do so. For example, if the financial, operational and staffing constraints of the organisation are such that it is necessary to bring closure to the internal process.

The police may wish to interview those who provided witness evidence to the internal investigation. Although witnesses can refuse to give evidence to the police, a court may order that documents are disclosed or issue a summons for a witness to attend a trial.

Data protection considerations

People working for your organisation, particularly those who may be fielding calls and dealing with requests on reception, should be aware that personal data relating to employees and others must be lawfully processed and that the provision to a third party of personal information could be in breach of data protection law.

In the case of criminal investigations, it is possible that the police will request personal information about the employee from the employer. The police should provide a "section 28/section 29(3)" information request form for this purpose. Information should not automatically be provided to the police. The request should be channelled to a senior decision-maker (for example the data protection officer or the CEO of the organisation) who can make an informed decision about whether sharing the information would breach the rules. Information requested by the police may be covered by exemptions, for example where the disclosure is made in the interests of preventing or detecting crime and/or capturing or prosecuting an offender. If an exemption is considered to apply, the employer may decide to disclose the data to the police.

Information about someone's criminal record is sensitive personal data and should only be shared with the employee's explicit consent unless an exemption applies. Where the organisation has a duty to report details of an employee's criminal record to the DBS or to a prospective employer, such a disclosure will be permissible on the basis that the disclosure is required by law.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.