If an employee's misconduct is the subject of a criminal investigation, can the employer continue internal disciplinary proceedings?
Yes, where an employee has committed misconduct at work that is also the subject of a police investigation the employer can conduct its own investigation and does not have to await the outcome of the criminal proceedings. However, the employer may need to exercise caution so that it does not impede the police inquiries. Further, the employee may choose not to cooperate so as not to prejudice their defence to any criminal charges.
The non-statutory Acas guidance that accompanies the Acas code of practice on disciplinary and grievance procedures states that, where an employee who is charged with a criminal offence refuses, or is unable, to cooperate with the employer's disciplinary investigations and proceedings, the employer may still take action. The guidance recommends that the employer should advise the employee in writing that, unless further information is provided, it will take a disciplinary decision on the basis of the information available, and this could result in dismissal. The guidance also states that, where the police are called into the workplace to investigate a criminal matter, they should not be asked to conduct an investigation on behalf of the employer nor be present at any disciplinary meetings.
The employer should carry out a reasonable investigation as far as it can to establish the facts. If there is insufficient evidence to establish an honest and reasonable belief in the employee's guilt, the employer may decide to wait for the outcome of the criminal proceedings. The employee could be suspended on full pay during this period, which could last for several months.