Disciplinary process – employee is being investigated for criminal charges

What do I do about a disciplinary process when the employee is being investigated for criminal charges?

On occasion, an employee is arrested and charged with criminal proceedings that have an impact on them or others at work.

When this happens the dilemma is whether to wait for the outcome of that criminal process or move forward with internal disciplinary proceedings.

A recent tribunal case provides some clarity on this question.

Mr Bosher was arrested in 2017 on suspicion of possession of “category A” indecent images, the most severe type.

Despite him later being acquitted, his employer, EUI dismissed Bosher before the outcome of the criminal case on the grounds of gross misconduct, claiming it had “reasonable belief that the allegations may be true”.

Following his arrest in July 2017, Bosher was told that because of the charges against him, EUI would need to investigate.

He wasn’t suspended or placed under any restrictions at work.

On 11 August 2017, Bosher attended court, entering a “no plea” rather than guilty or not guilty.

EUI ultimately decided that as Bosher had never categorically denied the allegations and then pled as “no plea”, rather than pleading not guilty, it was likely he had committed the crime.

They dismissed him on the grounds of reputational harm and fitness to continue in his role.

His internal appeal failed and on the 10th April 2019, Bosher was acquitted of the alleged offences after the CPS offered no evidence against him.

Mr Bosher claimed unfair and wrongful dismissal in the Cardiff Tribunal.

During the tribunal, there was conflicting evidence presented including what Bosher had allegedly said to his employer about access to “distasteful” material and also what he had said and been advised about his plea – whether to plead guilty or not.

The tribunal ruled that the dismissal of the claimant was both unfair and wrongful and that it was not reasonable for EUI to have taken the decision to dismiss before the criminal trial had been concluded.

This is because it was difficult for the employer to substantiate their “reasonable belief” that he had committed the act, plus be able to demonstrate what the actual impact of the alleged act had on his role.

The message is that employers should wait for the outcome of criminal proceedings before commencing any internal processes.

This is difficult – they can be long and complex, often seeing employees suspended on full pay for months at a time whilst awaiting court dates and outcomes.

The alternative though is a loss at a tribunal.