The highly anticipated report into what happened at 10 Downing Street during the COVID-19 pandemic has been making headlines for weeks but now there is concern that the report might need to limit its focus or that its content might need to be kept hidden as the Metropolitan Police are now investigating much of the same conduct as part of their own criminal investigation.
Reports claim that the police have requested that Sue Gray, the civil servant appointed to conduct the internal investigation, steer clear of areas which the police are also looking at as part of their criminal investigation. It is a high profile example of a workplace issue which does arise from time to time – where internal disciplinary issues arising are also potential criminal offences. How should an employer act in such cases. We consider some of the key issues below and provide some practical pointers.
What should an employer do if a disciplinary allegation may also be criminal?
Should an employer tell the police if they are not already involved? Not always. Involving the police should not be an automatic response to allegations arising within employment which may be criminal in nature. In the case of Crawford and another v Suffolk Mental Health Partnership NHS Trust  IRLR 402, the Court of Appeal considered that being under threat of possible criminal proceedings was a very heavy burden for an employee to face and that employers should not subject employees to that burden without the most careful consideration.
Do employment laws still apply where a disciplinary allegation may also be criminal act?
Just because a disciplinary allegation which has arisen may also amount to a criminal offence does not mean that employment law principles no longer apply. Unfair dismissal rights are not dis-applied just because a disciplinary offence is a potentially criminal one. Where the allegation is one of potential gross misconduct an employer would still be expected to be able to show that they held a reasonable belief following a reasonable investigation that the employee was guilty of the misconduct complained of (British Home Stores Ltd v Burchell  IRLR 379). The ACAS Code of Practice would still apply, as would any internal disciplinary procedures in place.
How might a disciplinary investigation be impacted by the fact that the police are involved?
There are several ways in which concurrent police involvement may impact on an internal disciplinary investigation and resulting disciplinary proceedings.
One of the most common issues is that an employee may refuse to respond to questions, often on legal advice, on the basis that doing so could prejudice a pending police interview or trial. In such cases it would be appropriate to give the employee the opportunity to make a statement but it would not be reasonable to demand answers from an employee if they are uncomfortable given the concurrent criminal proceedings. To do so could amount to a breach of trust and confidence by the employer and risk claims including constructive unfair dismissal. Employers should be mindful of the stress which the employee will likely be under in such circumstances and not apply pressure.
If the employee chooses not to make a statement due to the risk of incrimination and the employer concludes that it does not wish to adjourn the process pending the outcome of the criminal proceedings, the employer would need to look at all other evidence gathered as part of the investigation before deciding whether or not to take the matter forward to a disciplinary hearing. The same internal processes should apply as would apply to any disciplinary investigation. The employer should ask themselves: based on the evidence gathered, is there a disciplinary case to answer?
Should the employer wait for the outcome of the criminal proceedings before concluding the disciplinary process?
Criminal proceedings often take several months to come to trial. Employers may not want to wait this long before concluding any disciplinary process. In the case of Ali v Sovereign Buses (London) Ltd UKEAT/0274/06 the EAT, giving guidance on the dual options of waiting for criminal proceedings to conclude or pushing ahead with an internal disciplinary allegation noted that it might be impractical for an employer to wait, if a criminal case takes many months to come to court, before deciding on the employee's future with the employer. The size of the employer's business, the nature of the business and the number of employees will be relevant. Tribunals recognise that employers, particularly small employers, may be placed in a dilemma when criminal charges are brought against an employee in circumstances relating to their employment.
In North West Anglia NHS Foundation Trust v Gregg 2019 the Court of Appeal gave some important guidance on how to handle disciplinary matters where there are ongoing criminal proceedings. It confirmed that employers do not necessarily have to postpone disciplinary proceedings to wait for the outcome of criminal or regulatory investigations. It also considered that unless there was a contractual provision which allowed for suspension without pay a salaried employee would need to continue to receive their pay during any suspension that had been imposed pending the outcome of the proceedings.
A further point to remember is that even if the employer did wait the criminal courts will be judging the conduct against a different standard of proof to that applied in the employment context. For a criminal conviction belief in guilt beyond ‘reasonable doubt’ has to be established whilst for a ‘fair dismissal’ the employer only need show a ‘reasonable belief’ that the conduct has occurred. It follows that an acquittal in a criminal trial does not necessarily mean that dismissal would be unfair.
Can the employer rely on evidence from the police investigation?
The ACAS Code of Practice states that employers should generally rely upon their own investigations when considering disciplinary matters which involve potential criminal allegations.
However, the findings of a police investigation into a criminal matter arising in employment may be clearly relevant and provided that the employer has assessed for itself, as far as practicable, the reliability of what it has been told it can be taken into consideration as grounds for disciplinary sanctions.