How do I handle when alleged criminal offences arise in the workplace?


Niall McSorley writes:


All employers are aware of the requirements when disciplining employees, since they obtained statutory recognition in the Employment (NI) Order (Dispute Resolution) Regulations (Northern Ireland) 2004. The requirements being that;

• The allegations are investigated;
• The employee must be informed of the allegations in writing;
• There must be a disciplinary hearing, at which the employee has a write to be accompanied by a work colleague or trade union representative;
• The employee must receive written confirmation of the outcome;
• The employee must receive a right to appeal.

Case law has expanded upon the detail of these requirements.

One issue appears from a recent case to be topical and that is the connection between allegations of a criminal nature and disciplinary action.


Criminal Action


It is clear from LRA guidance that an employee simply being charged with or convicted of a criminal offence is not necessarily a reason for disciplinary action. Rather, when deciding whether to discipline an employee, an employer should look at the effect of the charge or conviction on the employee’s suitability for his/her job, and how it affects his/her relationship with others in the workplace.

In relation to criminal offences the following points should be made;

• Suspensions should not be automatic, even if there is a contractual right to suspend. Suspension of the employee is only merited if the employee could disrupt the investigation or the allegations are so serious that it impacts upon his/her ability to do his/her job.

• Only criminal charges that affect an employee’s ability to fulfil his/her duties can be subject to disciplinary action.

• Employers do not have to await the outcome of a police investigation in order to commence its own investigation and discipline the employee. The Employer can also rely on the outcome of a police investigation. However, the police may ask that the investigation does not commence until after the police investigation, primarily to ensure the effectiveness of the police investigation.

• The decision of the Employer in relation to the employee will always be governed by the standard of reasonableness. The employer must be able to show that;

• • It believed that the employee was guilty of misconduct;
  • It had reasonable grounds for believing that the employee was guilty of misconduct;
  • At the time it held this belief, it had carried out a full and proper investigation; and
  • Its response, in terms of the penalty imposed was within a band of reasonable responses.

• If an employee is in custody, it could be argued that the contract of employment is frustrated by the non-attendance at work. The contract could possibly be terminated on the basis that the employee cannot attend work, even if the allegations have no negative impact on the employee’s job. However, when assessing the reasonableness of this the Tribunal will look at the size and resources of the employer.

• A higher standard of proof applies in disciplinary hearings than in criminal investigations. In disciplinary hearings the employer needs to decide whether the allegations are true, on balance of probabilities (more likely than not). In criminal cases, the offences must be proven beyond a reasonable doubt for a conviction to follow.

A recent case cited by Legal-Island is that of Crawford and another v Suffolk Mental Health Partnership NHS Trust [2012] EWCA Civ 138. In this case two nurses were dismissed following a complaint from their manager that they had tied a patient with dementia to a chair. The Trust reported the matter to the Police. However, the Police did not pursue the matter. The employees were suspended and dismissed, despite having had unblemished records.

The Court of Appeal overturned the EAT decision and held that the employees had been unfairly dismissed. The Court made it clear that the matter should not have been reported to the Police. The Court stated that any criminal investigation involved a heavy burden, which in this case was unnecessary. The Court found that there had been procedural flaws in the process, including the fact that no statement was taken from the manager who made the complaints. The case certainly puts in interesting spin on the steps an employer should take when face with allegations of a criminal import.

So, employers should be aware that disciplinary action where criminal allegations are involved is far from straightforward and the employee is always innocent until proven guilty.