Handling allegations of criminal conduct: what should an employer do?

The MP has now been arrested and bailed, but there has still been no investigation by the party.  He has not been suspended from parliament by Commons authorities and the Conservative whip has not been withdrawn.  Most recently, the party’s decision not to withdraw the whip was supported by none other than the Prime Minister, Boris Johnson, who said “I think we’ve got to wait for the police to decide whether they want to make charges and take a decision on that basis”.  But is that correct?

Does an employer need to wait for a charge or a conviction?

The short answer is, no. 

Situations like this one require sensitive handling and knee-jerk reactions are best avoided.  Not all criminal allegations will have a bearing on the workplace, and employers can often safely decide that these issues are none of their business.  Motoring offences resulting in a fixed penalty are a common example of criminal offences to which many employers turn a blind eye.

The perspective of the alleged victim and the accused need to be taken into consideration, as well as any potential impact on the organisation or the people the accused person will have frequent contact with.  If the alleged victim and the accused are expected to work alongside each other, if there is a significant potential risk to the safety of other people, or if the nature of the allegations alone is damaging the reputation of the organisation, an employer is, at the very least, entitled to act.

Similarly, an allegation which is unrelated to work but which results in bail conditions which prevent the employee from doing their job is likely to require action on the part of the employer.  

Where an employee is accused of sexual assault or rape by a colleague the ACAS guidance on sexual harassment is unflinchingly clear: “If the incident has been reported to the police or it's going through a court, [the] employer must still investigate [the] complaint”.

Of course, the MP in question is not an employee so the precise processes to follow may differ, but the essential requirement to investigate must surely still apply.

The first step: an investigation

The starting point should always be an investigation in order to establish the facts and determine whether a disciplinary (or similar) procedure should be instituted.   

At the outset of that process, an employer must decide what arrangements should be made while the investigation runs its course.  For example, could the accused be asked to work from a different location on a temporary basis, or have their duties modified?  It is possible that the alleged victim will ask for changes to their own working arrangements, such as to remain away from their normal workplace as an interim measure, but employers should be careful not to impose such arrangements on complainants as this could be treated as victimisation.

An important issue to consider is the question of suspension.  Suspension of the accused should be a last resort.  If they are suspended, this should be on full pay, kept as short as possible and not seen as a sanction in its own right. 

If the accused is not an employee but comes into contact with your organisation in a different capacity – such as a client, contractor, supplier (or MP) – the organisation should consider what other safeguards might be appropriate while the investigation takes place.

What if the accused is in police custody or refuses to co-operate?

When investigating highly sensitive allegations, which will inevitably have a significant impact on both the accused and the alleged victim, it is vital that the investigation is handled appropriately, with wellbeing safeguards in place.  Ideally, the investigator will have had specialist training and experience; employers may wish to consider bringing in a specialist workplace investigator to handle the process. 

An accused individual may well refuse to answer questions (potentially based on legal advice) if they feel that what they say to their employer may be used against them in any criminal proceedings. Nevertheless, in most cases, employers will not be prepared to delay their investigation until the outcome of any criminal proceedings is known, bearing in mind that this may take months, or even years.  The ACAS guide to disciplinary and grievance procedures (“ACAS Guidance”) requires an employer to hold any disciplinary hearing without unreasonable delay.

The ACAS Guidance tells employers that they should investigate the facts “as far as possible” but makes clear that it is not necessary to await the outcome of a criminal prosecution before taking fair and reasonable action.  The employer must conduct its own investigation and should not rely on the police to do this for them. 

Where the accused refuses to co-operate with an investigation, the ACAS Guidance advises that this “should not deter an employer from taking action” – instead the accused should be “advised in writing that unless further information is provided, a disciplinary decision will be taken on the basis of information available and could result in dismissal”.

If the accused decides not to take the opportunity to provide information, a decision can be made based on the other evidence available at the conclusion of the investigation.  The investigator should ensure that they look for evidence of innocence as well as evidence of guilt. 

In order for disciplinary action to be taken at the conclusion of the investigation, the essential elements are for the employer to have a reasonable belief in the accused’s guilt, based on a reasonable investigation, and the level of investigation carried out must have been within the "band of reasonable responses"

What if the police decide not to charge, or if the accused is acquitted?

The employer is not bound by the outcome of the police process.  There will undoubtedly be situations where an employer decides it is appropriate to continue its investigation or disciplinary process even after the police process is abandoned or the employee has been acquitted at trial.  The reason for this is that criminal and civil proceedings are very different – the standard of proof for a crime is ‘beyond reasonable doubt’, whereas in a civil matter, ‘the balance of probabilities’ (i.e. more likely than not) is enough.

An employer needs to reach its own, reasonable decision, based on a fair and reasonable investigation of the facts.

If you would like further help

We regularly advise our clients on managing workplace investigations, and our specialist investigators are highly experienced in handling sensitive investigations involving allegations of criminal behaviour.  For further information please contact Karen Baxter, Head of our Investigations and Regulatory team, or your usual Lewis Silkin contact.