Mr Mansfield was a prison officer. Allegations were made against him of orchestrating violence amongst prisoners and planting drugs on a particular prisoner. An internal investigation commenced in April 2006, however, in May 2006 the matter was referred to the police and the internal investigation was halted. In April 2007, the criminal proceedings came to an end with the first allegation having been dropped and the second resulting in a not-guilty verdict. The internal investigation was subsequently re-started and Mr Mansfield was ultimately dismissed. He raised a claim of unfair dismissal, alleging (amongst other things) that his dismissal was unfair as a result of the delay caused by the decision to adjourn the disciplinary procedure pending the outcome of the criminal investigation and prosecution.
The Employment Appeal Tribunal ("EAT") found, however, that the employer's decision to postpone the disciplinary hearing was entirely appropriate in the circumstances, and that it did not render the dismissal unfair. The EAT advised that where an employee facing disciplinary proceedings is, at the same time, being investigated by the police, the employer will have a wide discretion regarding whether or not to postpone the disciplinary process.
IN PRACTICE
- A police investigation, criminal charge or conviction is not necessarily a reason for disciplinary action in itself. It is necessary to consider the effect on the employee's suitability to do the job and their relationship with their employer, work colleagues and customers. For further discussion of this, see our e-bulletin 24 March 2010.
- In reaching a decision on whether to postpone the disciplinary process, the following should be considered:-
- The ACAS Guide which accompanies the ACAS Code of Practice on Disciplinary and Grievance Procedures advises that "where the conduct requires prompt attention the employer need not await the outcome of the prosecution before taking fair and reasonable action". This recognises that, in some cases, employers may be keen to press ahead, as the criminal proceedings may take months, or longer.
- The employee's contract or a disciplinary procedure may set out what is to happen in the circumstances.
- Is a decision, either to postpone or proceed, likely to result in prejudice to the employee?
-If a decision is taken to postpone, it may be necessary to carry out some investigations before doing so, to ensure that witness statements are taken before memories fade, or before key witnesses leave your employment.
- Employers should not rely on the outcome of a police investigation. A full disciplinary investigation and procedure must still be carried out and the police should not be present at any disciplinary interview or hearing.
- Employers should not rely solely on guilty pleas in criminal proceedings. There can be a number of reasons for an individual to tender a guilty plea and a separate disciplinary process will still be required.
- An employee may refuse to respond to questions, often on legal advice, on the basis that their response could prejudice the criminal proceedings. If an employer proceeds with the disciplinary in these circumstances, the employee should be offered the same opportunities as usual to state their position. If they fail to respond, they should be advised that unless further information is provided, a disciplinary decision will be taken on the basis of the information available, which could result in their dismissal (if this is the case). At the decision-making stage (i.e. following the investigation and hearing), the employer must consider whether the available material is strong enough to justify the dismissal. If the evidence produced is, in the absence of an explanation, sufficiently indicative of guilt, it may be appropriate to act. If, however, there are doubts, it would be fair to wait until the employee is in a position to provide more information.
Secretary of State for Justice v Mansfield UKEAT/0539/09/2403
Contributors
Partner
Head of Employment & Partner
Partner
Partner
