The Employment Appeal Tribunal held in the unfair dismissal case of Secretary of State for Justice v Mansfield 2010 that where an employee is facing disciplinary proceedings and is at the same time the subject of a police investigation, the employer has a wide discretion as to whether or not to postpone the disciplinary hearing.
Main points to consider for employers exercising this discretion:
- Will continuing the disciplinary process prejudice the employee’s criminal proceedings?
- To what extent does the prejudice justify a delay?
- What is a reasonable delay in the circumstances?
Historically, case law has shown that when the Tribunal considers a delay to be unreasonable, the dismissal will be rendered unfair.
Many employers may wish to dismiss as soon as possible rather than wait for what could be a lengthy police investigation. In some cases, the employer will be able to go ahead with an internal disciplinary process and potentially dismiss whilst police investigations are ongoing and without awaiting the outcome of the police investigation. The problem arises where the employee in question refuses to participate in the internal disciplinary proceedings on advice that it may prejudice the criminal proceedings, and therefore, access to particular evidence, which the employer would have used to make their decision, may be denied. The employer will have to make an assessment on the evidence available, weighing up relevant factors against the risk of the employee raising a claim against them:
- Does the evidence available require an explanation in order for the employer to be able to reasonably justify their decision?
- What could be the potential costs involved in delaying the internal disciplinary process?
Contact
David Hoey