As Partner and Head of the Employment department Simon undertakes all types of employment work.…View Profile View all
We are frequently asked what employers should do when an employee is being investigated by the Police and, given safeguarding obligations and reputational risk, we are asked this question from our school clients more than in any other sector.
Local authorities often advise that the internal investigation should be postponed and trade unions often push for this as well. They will often refer to potential prejudice to the employee.
However, the problem is that Police investigations can go on for months and the court process, in the event that the employee is charged with an offence, can take more than a year. All the while, the employee is suspended on full pay.
There is also an added problem when, after suspension on paid leave for a year or more, the employee is then found not guilty. Can you really have the employee back in school? If not, given the finding of ‘not guilty’, is there a fair reason for dismissal? Probably not. In these cases, there is often a settlement agreement with a payment to the employee which is, of course, in addition to the salary which has already been paid whilst the employee has been suspended.
Given that the potential compensation in an unfair dismissal claim is capped at 12 months’ pay, from a commercial point of view it can actually be cheaper to dismiss unfairly and to negotiate settlement in due course than it would be to delay, pay salary during suspension and then go through due process once the court process has concluded.
A recent decision of the Court of Appeal in North West Anglia NHS Foundation Trust -v- Gregg has held that an employer does not have to postpone a disciplinary hearing pending the outcome of the police investigation into an employee. Mr Gregg was a doctor facing disciplinary, regulatory and police enquiries following two patient deaths. He was suspended on full pay.
When disciplinary proceedings were commenced, Mr Gregg commenced proceedings which included an application for an injunction preventing disciplinary proceedings until the criminal investigation had been completed. The High Court granted the injunction, holding that continuing with the internal process would breach the duty to maintain trust and confidence. The Trust appealed and the Court of Appeal overturned the injunction.
The Court of Appeal warned against ‘micro-management’ by the courts of the employer’s internal procedures and that the bar for whether there had been a breach of the implied term of trust and confidence was a high one. There would have to be conduct intended to destroy or seriously damage the employment relationship. There also needs to be consideration of whether the employer had reasonable and proper cause for such conduct.
An employer wanting to carry out an internal investigation would normally not do this with the intention to destroy or seriously damage the employment relationship and such procedures would be commenced due to reasonable and proper cause.
Employers, and schools in particular, should not therefore be concerned about continuing with internal procedures at the same time as a Police investigation is ongoing.
This is one of the problems that will be discussed at our upcoming seminar for schools and academies on 16 May 2019. Full details and booking information can be found here https://managingstaffeffectively.eventbrite.co.uk