An Employer’s 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.
Please see our guide to disciplinary proceedings and links to other related articles:
- Gross Misconduct: Important Questions Answered
- A Beginners Guide to Disciplinary hearings- our 4-part guide:
- A Beginner’s Guide to Disciplinary Procedures – Part 1
- A Beginner’s Guide to Disciplinary Procedures – Part 2
- A Beginner’s Guide to Disciplinary Procedures – Part 3
- A Beginner’s Guide to Disciplinary Procedures – Part 4
- What is Suspension from Work?