“I am a HR Manager of a business and believe one of our employees has stolen some money.  When the matter came to light we reported the incident to the Police and the PSNI are currently investigating the matter.  What can I do about this employee, considering the ongoing Police investigation?”

You have not indicated whether you have suspended the employee. Subject to your contractual rights to suspend, it would be advisable to suspend the employee pending the outcome of your own investigation.  You should write to the individual suspending him/her from employment, providing some information about the restrictions placed on the employee in that he/she should refrain from contacting potential witnesses, attending the workplace.  You should also give some brief information about the allegations against the individual which has led to the suspension.

In view of the nature of the allegations against this employee, you might also consider taking steps to ensure the integrity of the information you hold, e.g. financial journals/accounts, bank statements, monthly drawings, email passwords etc.

Even if you believe you have sufficient evidence to establish this person’s guilt, considering you have also reported the matter to the police, you will still be required to carry out a full investigation and disciplinary process, observing the requirements of the statutory dismissal procedures and taking sufficient steps to ensure that your internal processes are fair and transparent.

You will be aware that, as far as possible and considering the size of your organisation, each stage of the investigation and disciplinary process should be carried out by a different person, who has not been involved in the matter already, with any appeal falling to the most senior level of management within the business.

Remember too, that the employee has the right to access the evidence against him/her as part of the proposed disciplinary process.  As you will know, the individual will also have the right be accompanied at the disciplinary hearing, and any subsequent appeal.

Of course, if the Police investigation is still underway, you should bear in mind that the employee may be reluctant to provide any information to you as part of an internal process that would implicate them in the criminal investigation currently being undertaken by the Police.  You might wish to consider the stage of the Police investigation/potential prosecution in considering your own internal investigation.  You should however be aware that there is no absolute requirement that you must postpone your own internal investigation pending the outcome of any Police involvement.  Much will depend on the individual circumstances, the availability of evidence, willing witnesses and whether the Police have already interviewed the particular employee.

I recommend you liaise with the PSNI about their investigation.  Your investigation however does not concern a criminal matter and you will not be expected to demonstrate that the individual was guilty of theft, beyond unreasonable doubt.  Conversely, if the Police decide not to take further action, it does not automatically mean that you cannot continue with your internal process.  As you will know, your investigation, and disciplinary process, proceeds on the basis of a reasonably held belief that the employee committed misconduct, and that belief is based on a reasonable investigation.  Your investigation and subsequent disciplinary process must establish allegations of misconduct against the employee, on the balance of probabilities, always considering that any sanction should be within measures that a reasonable employer might take.

The PSNI may ask you to delay your internal investigation to protect the validity of their evidence, interview of witnesses etc.  I suggest you should think carefully about any such request, to ensure the fairness, of your own internal processes.  You will be aware that any investigation/disciplinary process should be undertaken without unreasonable delay.  Subject to the outcome of your own investigation, you could still move to discipline/dismiss the employee before the outcome of any PSNI matter.

The outcome of a successful PSNI prosecution will not automatically justify your internal process, and dismissal of the employee.  It will be necessary to proceed with this investigation/disciplinary process as with any other employee, where criminal proceedings are not anticipated.  As indicated above, you should ensure you follow the three step statutory procedure to avoid a finding of automatic unfair dismissal and a risk of an increase in any damages awarded.