What Line of Duty Can Teach Us about Employees Facing Criminal Charges.

NO SPOILERS.

With more than 9 million having tuned in to the series finale of BBC’s Line of Duty and after an intense investigation of the actions of the Head of the Anti-Corruption Unit 12, Superintendent Hastings (no spoilers), perhaps you were left wondering how to navigate the minefield of investigating an employee internally who is also facing a police investigation and possibly criminal charges.

As supported by ACAS guidance and their Code of Practice, a police investigation, criminal charge or conviction related to off-duty conduct is not necessarily a reason for disciplinary action in itself, if it has no bearing on the employee’s suitability for the job, or on their relationship with the employer, its customers or their colleagues. The employer should consider whether the conduct is sufficiently serious to warrant commencing the disciplinary procedure. Conduct outside of work which has no bearing on their employment is unlikely to justify disciplinary action.

However, should an employer be legitimately investigating an employee for misconduct in the course of their employment or which relates to their suitability or ability to do their job and it also happens to cross-over into a criminal remit, recent case law has confirmed that an employer is entitled to continue with any on-going internal disciplinary procedure and the employer is not required to postpone a disciplinary hearing pending the outcome of a police investigation into an employee. Indeed, it may be considerably impractical to wait for the completion of a criminal investigation or prosecution.

If a police investigation uncovers wrongdoing by the employee, the employer may rely on the information supplied by the police when conducting its disciplinary process. If the employer finds evidence in their internal investigation which is inconsistent with the police findings, employers are entitled to treat information received under an official disclosure regime (such aa a police investigation) as reliable.

Additionally, where an employee, charged with or convicted of a criminal offence, refuses or is unable to co-operate with the employer’s disciplinary investigations or proceedings, this should not deter an employer from taking action. The employee should be advised in any circumstance which should arise of any possible outcomes and that a disciplinary decision will be taken on the basis of the information available.

The Court of Appeal has commented that employers are entitled to follow their internal procedures and not be “micro-managed” by the Courts and Tribunals in these situations. It therefore follows that employers should take a leaf out of DS Arnott and DI Fleming’s books, remain composed, follow the rules & procedures and leave the drama to the BBC.

The contents of this newsletter are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this newsletter. © Mundays LLP.

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