An Employer’s Guide to Disciplinary Action and Police Investigations

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An Employer Guide to Disciplinary Action and Police Investigations

Without wishing to delve too heavily into the current (alleged) political shenanigans, there has been much discussion about the announcement of an investigation by the Metropolitan police and whether this will delay, derail, shelve or impact the hotly anticipated internal report by a senior civil servant into (alleged) goings on at Downing Street.

In this article, we examine the best practice approach when you are faced with an allegation affecting a member of your staff, which may also be subject to a police (or otherwise external) investigation.

Under what kind of circumstances would this happen?

Police investigations usually arise when you are faced with a conduct case which needs to be investigated and dealt with under your disciplinary procedure (please see the links to our series of guides on conducting disciplinary proceedings at the end of this article).

For example, you may be dealing with an allegation of theft or financial irregularities such as fraud. You may be dealing with a case of sexual assault, physical violence between colleagues at a work function or in a care setting, care standard breaches such as abuse and neglect of a vulnerable service user or safeguarding breaches in a childcare setting.

In the latter examples, it may not only be the police who are involved but other external regulatory bodies such as Ofsted, Local Authority Designated Officer (LADO) for safeguarding or the Care Quality Commission (CQC).

Do I have an obligation to report matters to the police or external organisations?

It will depend on the type of sector you are in, the roles of the person involved and the nature of the allegation.

In cases of assault and sexual offences, you may find that your employee reports the matter to the police of their own volition. They may also choose not to do so but in either case, the employer cannot insist on the action they choose to take.

In terms of your responsibilities, you should act reasonably and responsibly. There may not be a requirement for you to report the matter to the police but consider the circumstances carefully. Remember, you have a duty of care to all your staff and anyone who comes into contact with them.

In sectors such as Care and Education/Yearly Years, there are requirements to report certain allegations such as abuse and safeguarding breaches. Organisations regulated by the Financial Conduct Authority (FCA) also have reporting duties into allegations of financial impropriety and standards.

If you are in any doubt, you must seek advice from your regulatory bodies and/or the police at the earliest possible opportunity. You must not fail to report because you anticipate this may cause a delay.

Do I need the permission of the police before I take any disciplinary action against a member of staff?

If they are investigating, or the matter is going to be reported to them, then you are advised to check in with them.

For example, if a member of staff has decided to set up their own business by removing goods from your warehouse without your permission and selling them for profit. You have reported the matter to the police but you also (understandably) want to take action to remove them from their employment as well.

If you get a bit ahead of yourself and start your own investigations, your employee may have started to cover their tracks, making it harder (or near impossible) for the police to gather sufficient evidence.

Its always best to check.

Are there any implications for me if I continue with an internal investigation against the advice of the police?

If we continue with the example above, the main problem will be no hope of a conviction.

However, there may be more serious implications for actively going against what the police have told you to do. In short, I wouldn’t recommend it.

If the police charge a member of staff or they are convicted, do I still have to do an internal investigation?

The key thing to remember here, and why this is important, is that there are different arms of the law and different burdens of proof operating here.

If the police are involved, they must prove the particulars of the offence beyond reasonable doubt.

On the other hand, the employer is not bound by this same burden of proof when taking disciplinary action against an employee. Instead, the employer must have a reasonable belief of their employee’s wrongdoing.

That doesn’t mean that just because there has been an arrest and the person is facing trial or has admitted the offence to the police, that you are not required to investigate.

For disciplinary action to be fair, you must follow a fair disciplinary procedure and make a decision that is reasonable.

If the police decide not to take any further action, am I prevented from pursing the matter any further?

This is why your own investigation is vital.

Your employee may mop their brow and think they are home and dry but remember- you are not required to prove beyond reasonable doubt, you need a reasonable belief.

What that means is, if another employer were to look at the case against your employee, would they come to the same conclusion as you? If ‘yes’, the action you’ve taken is reasonable, if ‘no’ then it’s likely to be deemed unreasonable and unfair.

Would I have to pay suspension pay if I am prevented from moving forward with my investigation whilst the police are investigating?

The short answer is yes.

This is very common in cases involving external organisations as well as the police. For example, cases that are complex can take time and if the police have told you to hang fire, your employee may be suspended for some time. Suspension is with pay.

Similarly, cases involving breaches of care standards or safeguarding can take some time.

The options that are open to you will depend on the individual circumstances and we will be able to explore this with you in more detail.

REMEMBER- just because the police or external organisations are involved, this doesn’t always impact or delay internal HR procedures, but you need to be mindful that there could be some overlap on occasions.

Useful links:

Please see our guide to disciplinary proceedings and links to other related articles:

Job descriptions and person specifications

I would never embark on a recruitment exercise without these documents. What are they?

  • job description is literally a description of the duties, roles and responsibilities.
  • person specification contains the requirements the candidate must have in order to carry out that role.

These documents used together make the process of recruitment easier and if used correctly will help you avoid discrimination claims because they keep you on track to ensure you are recruiting on merit.

Plus, they give candidates something to frame their applications around. Have them available on your website or ask candidates who are interested in the role to contact you so that they may be issued prior to the submission of their application.

We hold examples of job descriptions across many industries- take advice from our experts on this important first step.

Job advertisements

From the wording of job adverts to where they are placed, care needs to be taken.

Have the job description and the person specification in mind when wording an advert. Use the advert to attract the right candidate rather than using language which will actively ‘put off’ others.

For example, consider descriptions such as ‘energetic’, ‘lively’, ‘recent graduate’ etc. These words can imply you are seeking a younger applicant and may discourage older applicants from applying (not that we are suggesting these adjectives only apply to the young!).

Likewise, if the role requires x number years of experience, then state this in the advert but if its not essential you may be inadvertently discouraging younger applicants.

Also avoid jargon and useless buzzwords like ‘industry guru’; the job advert is there to give information about the role- not to confuse people. You will waste precious and costly advertising space and end up sifting through applications from unsuitable candidates.

Be mindful of gender-neutral descriptions. ‘Salesman’ or ‘Waitress’- imply applicants of a particular gender are being sort- this wording in an advert is enough for someone to bring a claim against you!

In terms of where they are placed, if you are advertising internally only then make sure all staff can see the advert. Don’t just email it to a select few and don’t forget staff on maternity leave or long-term sick!

Likewise, if you are advertising externally think carefully about where you are posting your advert. Are you advertising in a publication targeting a certain gender, religion or age group? You may be indirectly discriminating against certain groups.

As we touched upon in part 1, there are sometimes legitimate exceptions. However, don’t assume, seek advice from our experts.

Application screening

Most employers ask employees to submit CV’s. That is fine but from personal experience I find them quite time consuming to sift through because a CV is only going to contain information a candidate wants you to know and candidates use different layouts and so on.

An application form however forces candidates to fill in information you need and in the order you want it. They can be used with CV’s or on their own.

Just make sure your application forms are up-to-date. You should not be asking for dates of birth or medical history- more on this later. Please contact our experts who can provide you with application forms.

Interviews

Most people know that there are certain questions that ought not to be asked at an interview and most of those relate to family/pregnancy. For example, ‘any plans to start a family?’ ‘what arrangements do you have by way of childcare?’ etc.

The above questions are traditionally only put to females. If they were to answer in the affirmative to these types of questions and didn’t get the job…well, you will have a hard time justifying that this was not the reason they were turned down. A discrimination claim on the grounds of sex may be coming your way.

In part 1 we looked at protected characteristics under the Equality Act. As a rule, any questions relating to these areas should be avoided.

The best way to do this is to set your interview questions for all candidates and base those questions on the job description and person specification. You will need to vary those questions depending upon each candidate’s specific experience but be consistent.

Remember an interview is two-fold, it is for you to appoint the best candidate but it is also for the candidate to find out more about the role and the organisation, so they may make an informed decision as to whether the role is for them or not.

Interviewing candidates is often as nerve-wracking for the interviewer as it is for the candidate, especially if you are new to it.

I have seen instances where a company has the most robust policies in place but has fallen foul of the law due to inexperienced recruiters putting their foot in it. Employers must make sure that anyone responsible for any stage of recruitment is trained to do so. Our experts can help.

The golden rules to avoiding discrimination where recruitment is concerned are:

  • Always recruit on merit
  • Ensure those responsible for recruitment know what they are doing
  • Keep records of applications and interviews
  • Be consistent in your approach to finding the best candidate’s