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How will police involvement impact an internal investigation?

Posted in : Seamus Says - Employment Law Discussion on 3 August 2018
Seamus McGranaghan
O'Reilly Stewart Solicitors

Q: "How will police involvement impact an internal investigation?

Scott: "An employee had only been with the company for a few days, met a non-employee on a site. The two had some history and an unresolved dispute, which has no relevance to the current employment. Words were exchanged, and it became a physical altercation."

"It's unclear who threw the first punch, but both parties did attempt to hit the other. One employee is believed to have seen the first strike being made against our employee. Another employee found the injured non-employee and helped him. In the process, he heard the non-employee's version of events, which was that our employee had made the first move."

"The following day, the police subsequently arrested and charged our employee, then released him on bail pending either charges or a determination on whether charges are warranted. There has been no subsequent contact from the police to the best of our knowledge."

So here are the questions. Now, keeping in mind he's only been with the company a few days, Seamus, that might change your answers.

Seamus: Yes.

Scott: "In terms of doing an investigation, what should we be concerned about? What is the ideal timing for this, and how will the police investigation impact on this?"

Seamus: The first apparent point . . . Well, there's two things. First of all, this is a fairly fresh employee. He's joined the company only a few days, a bit of a red flag in the first few days that there's fisticuffs that take place. But in saying that, we don't know the circumstances to this. This doesn't appear to have been a work-related matter. This is a non-employee that has come on to the employer's site.

The second important point for me is that this has taken place on the employer's site, so it's the employer and the company's issue now that it has taken place during company time and on their site itself. So it would seem to me that an investigation does need to take place. I think that there is certainly some cognizance needs to take place in the fact that there's police involvement in it. That should alert the company that this is a serious issue, and also the question here is asking what implications does that have upon the company.

My view would be that the police investigation is one matter and the company's investigation is a second matter altogether. It would be my view that there shouldn't be any delay in investigating this matter, that it needs to take place. Just because you're investigating doesn't necessarily mean that it's going to automatically go to a disciplinary or the disciplinary action is going to be warranted. But certainly, where this incident has happened on company time and on the company site, it should be investigated.

I think that it's unlikely that the police investigation really should have any impact upon the employer's investigation. The employer is not tasked in the same way that the police is tasked in terms of . . . I mean the police are coming at it from a criminal level. They are looking at it from an investigatory process whereby they have particular powers and they have to give warnings in terms of criminal sanctions and everything else that can happen in terms of that.

Scott: And they need proof beyond reasonable doubt in order to process the case.

Seamus: Absolutely.

Scott: So if they don't think they can do that, that might be dropped.

Seamus: Yes.

Scott: That doesn't mean to say there wasn't an altercation. That doesn't mean to say that, rightly or wrongly, this new employee punched somebody. So taking that line, if it's a new employee, you'd probably say just sack them, following as much an investigation as you possibly can.

Seamus: Yes. I mean I think that it would be the safest to do the investigation, first of all, if it's a new employee. I think the standard position for most employers would be just dismiss. My advice always is, whenever any dismissal has taken place, even if the employee is just within the couple of days, is to adopt the statutory procedure.

Probably my advice on this one would be if the investigation has proven that there has been an assault by the employee, and whether that's because he threw the punch or whatever it is, you can adopt the modified disciplinary procedure, where such a sanction of summary dismissal is evident from the investigation there, you can do that and put it in writing and offer their pay subsequent to that. That's one way of keeping yourself right but maybe also dealing with the issue at the same time.

It's not something that you would recommend on every single potential summary dismissal case, but in circumstances where they're just in the door, because ultimately, if you got to a tribunal, you would be saying it's the employee's own fault here. They entirely contributed to their own dismissal.

Scott: So assuming that the person had longer service, of over a year's service or they've got some kind of good employment history behind them, it becomes a lot more dangerous to dismiss. So let's move this along. You know something has happened. You have to investigate. The police are involved, to some extent. How that might impact on it is that the employee might say, "I'm saying nothing because I might get sent down for whatever reason."

Q: What if our investigation notes are subpoenaed? Do we have to release them if asked for by the police?

It's very difficult to investigate and gather all that information. But one of the follow-up questions here is: Should we give consideration to the fact that our investigation notes could be subpoenaed, and do we have to release them if asked for by the police? Well, you have to, if there's a subpoena, but not if they're just asking.

Seamus: Certainly, I've had lots of cases where the police have approached employers and said, "Can we have your notes, please?" And the employer for maybe one or another reason might not be comfortable with that. Certainly in other cases that I've dealt with, my advice has been no. If the police wish to get these notes, they'll need to go to court and they'll need to get an order from the judge in order to do so and to keep yourself entirely safe and protect yourself from any breaches of data protection or any claims under GDPR for fines and things like that. You might be saying to the police, "It's not that I'm unwilling to provide them to you, but I will need a court order in order to do so."

My view would be that I don't think that if you're investigating the matter, that it really should be. If you're investigating it fairly and you're doing your best in respect of the investigation, you shouldn't really have any concerns about whether the notes are going to be subpoenaed or not or whether that's going to have an impact upon the criminal case.

I'll also just point out there's not an expectation that the employer will act in an investigation the same way that the police will do. It's not a no stone unturned type of investigation. It does need to be a reasonable investigation. If we go back to the LRA Code of Practice, it will give us the guidance in terms of saying what is a reasonable investigation, but it's not a matter where the manager is going to have to interview 12 people, whether they came across the incident or didn't. It just has to be a reasonable investigation and within the realms of that. It's not a police investigation. I'd let the police do their job in terms of that.

As an employer aspect, complete the investigation in a fair manner, give the employee the opportunity during the investigation to tell you what has happened from their point of view. If you decide that disciplinary action is warranted after that, then it may be that you're taking a decision at that point as to whether or not you're going to proceed with your disciplinary action, or you're maybe going to wait until the outcome of the police investigation and maybe a court hearing. But that could be 18 months down the line.

Q: Must we pay an employee whilst they are in custody pending trial or should we suspend them?

Scott: That reaches the final question really that was raised by this person here. We have mixed reports on the company's obligation to someone who's been arrested. "Can we have clarity on whether we must pay an employee whilst they are either in custody pending a trial or even if we suspend them?" So, presumably, if there's an investigation and they're suspended, that would be on full pay . . .

Seamus: Yes.

Scott: . . . because it's not a disciplinary sanction. But if this goes on for 18 months, whether they're in jail or they're not in jail and you're awaiting the criminal trial because you don't want to prejudice it or whatever, you're stuck with paying this employee, aren't you?

Seamus: Well, that's it. I mean, I think that you would have to take a . . .

Scott: Not if they're in jail. They're not available for work.

Seamus: Well, if they're not available for work because they're in jail, then you don't have to pay them, and I think that you could possibly look at various ways of terminating the employment fairly if the employee is incarcerated and unable to attend work because there could be frustration of the contract in relation to that aspect of it.

But just going back to the prior issue there, in respect of where you suspend an employee, I've advised on this before. If you suspend, you have to suspend on full pay. You would need to have a clear reason for bringing about the suspension. I don't think it would be fair enough just to say, "There was an incident that happened. We're going to suspend you now because there's a criminal aspect to it, and we don't want that around our place of work." To me, that's not satisfactory. That's not enough.

You would also be giving the advice to the employer to say the likelihood is that the person might be, it could be 6 months, it could be 12 months, it could be longer. Are you really going to pay them their full pay for that length of time? I would have thought that the smarter thing . . . we talked about this previously in terms of what a tribunal's view might be. There would be nothing if the person was available to go ahead and proceed with your disciplinary process, whether or not the court case has come to hearing.

Now, the game has two different thresholds, two different levels of how it's dealt with. If you ultimately dismissed and the case went to court and the person was found to be not guilty of the crime, that doesn't necessarily mean that the dismissal has been unfair. Again, it's two different processes. It's looking at how fairly you applied the disciplinary process and how your sanction, whether or not that's proportionate or not to the outcome, but the interesting part of all of that really is that you get to the tribunal.

The tribunal might say, "Well, why didn't you wait? Why didn't you hold off?" And your reason might be because we weren't going to pay them for 18 months. I think that there would be maybe a bit of understanding from the tribunal's point on that. I think it's fair enough in the business world to think that way. But there might be a bit of legal unfairness in terms of looking at it.

Scott: I suppose it just depends on which chair you have or which judge to some extent.

Seamus: Yes.

Scott: The bottom line is that criminal law trumps civil law.

Seamus: It does.

Scott: If somebody's got this terrible thing hanging over them, then they may not be as open with you as an employer, and that would be understandable. There may be some also . . . there are some contracts, I think the PSNI contracts include that you have to be paid, but there may be something in the contract that says that during a criminal investigation, you have to be paid or you cannot take action until it's finished. Remember you have to look at the specific contracts.

Seamus: I'm aware of certain contracts as well that will say, for instance, in teaching contracts, often it will say that there shouldn't be any delay, but if there's a safeguarding issue and the police have been involved, that you should delay it and it may be that the employee may be out for 18 months, perhaps longer in terms of getting an outcome to the process before you move forward with it, and actually it's just about being just and fair to the employee.

 

This article is correct at 03/08/2018
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Seamus McGranaghan
O'Reilly Stewart Solicitors

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