How should I manage disciplinary proceedings when separate criminal proceedings are ongoing?Posted in : Seamus Says - Employment Law Discussion on 13 December 2017
Q. Is it advisable not to take any disciplinary proceedings including an investigation against an employee (despite having conducted part of the investigation) where the same alleged misconduct is subject to separate criminal proceedings?
Seamus: It's a bit of a difficult question to answer that one. And it's very much going to be based on what the circumstances are. So my advice would be I'll have to know what the circumstances of the individual case are. Certainly what I would say is that the employment process through a disciplinary is very different to the process of a criminal proceedings on it.
There are two very different standards of proof that apply. And certainly, I would know of policies and procedures that do you say that you should wait until there is a common term. And we're coming this back to the criminal proceedings.
Scott: And that would often apply in the professions where the careers at risk related to criminal offence.
Seamus: Yes. For instance, I'm aware of TNC policies for teachers, where you're at-risk of termination on the basis of allegation that will prevent you from teaching again. They will say that you should wait until there is finality in terms of criminal proceedings. But the difficulty with that, of course, is that if you have somebody at the level of disciplinary, you may not have an alternative but to suspend them. And if you suspend them then you're paying them, and that you're running maybe possibly a two-year period where you're paying someone for . . . and while you're getting the outcome of the criminal proceedings which is entirely out of your hands.
Scott: So unless your procedure says that you have to suspend, you don't necessarily have to suspend. You could continue with the investigation but it'll cause some difficulties because the employee may say, "Hold on. I don't want to incriminate myself." But there's nothing technically in law that would stop that investigation running side by side with a criminal investigation unless you're instructed by the courts or your procedure say.
Seamus: Yeah. Exactly. And I think, I mean from the tribunals view as well, if you ended up going to dismissal because of allegations, and then you would tend to think if there's criminal aspect to them that you are at that sort of heavier end of gross misconduct and things like that the tribunal will not look at it from a point of view of saying, "Well, you should have waited because you don't know what the decision is." I think that the tribunal will very much to look at the circumstances.
I've won at the minute and where we put up to the tribunal, and we get an application saying, we needed the outcome of criminal proceedings first of all. Now they moved quite quickly, the criminal proceedings that have now been dealt with. But the tribunal really they challenge us and say, "Well, why do you need the criminal proceedings if they have nothing to do with what the tribunal's outcome is?"
Because they will look of course at the fairness. And they'll look at the procedure applied, and whether or not the decision was reasonable in the circumstances. And they look at proportionality and all the kind of stuff. So it's a very different task that the tribunal will look at. But I think you're just looking at overall fairness and whether the impact of a criminal outcome will have such an impact upon your decision, and that you might need to wait in some circumstances. But I appreciate the fact that could be very costly for employers.
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