In March the Employment Appeal Tribunal in Secretary of State for Justice –v- Mansfield, made observations about the inter-relationship of police prosecution and internal disciplinary proceedings relating to the same matters.
In April 2006 Mr Mansfield, who was a prison officer, faced allegations against him of “orchestrating violence among prisoners and planting drugs”. He was suspended and was reported to the police. The first allegation was dropped before trial and no the second allegation effectively dropped at the trial outset in April 2007. All this time no internal disciplinary process was undertaken.
After April 2007 little happened but eventually in October an internal investigation report was prepared on the drug-planting issue. This led to a disciplinary hearing eventually starting in late January 2008. Mr Mansfield was dismissed in February. He twice appealed unsuccessfully and took his case to Tribunal whose decision was that the Claimant had been unfairly dismissed.
The reasons of the Tribunal were twofold: a lengthy and unacceptable delay in the proceedings and second, the employer did not genuinely believe that the Claimant was guilty of misconduct. The Respondent appealed.
About delay, the EAT accepted that Tribunals need to consider the length of the delay and the reasons for it, also accepting that it was not essential that prejudice to the Claimant of the delay needed to be shown. The EAT opined that this employer’s decision that the disciplinary hearing should be postponed while the police were still gathering evidence and a prosecution under way (April 06 to April 07), was entirely proper in the circumstances. The subsequent delay after April 2007 was within reasonable tolerances although the process was thought to be slow.
On the issue of the employer’s reasonable belief, the tribunal had substituted its decision for the employers: something which it must not do. The employer therefore succeeded on both grounds of appeal.
As a general rule it may be prudent to await the outcome of criminal proceedings before running disciplinary processes but this has potential disadvantages: for example, an acquittal may make a subsequent dismissal more difficult to justify even though it would be a permissible decision in principle because of the wholly different levels of proof; also, delay may be very costly for a small employer who will normally have to suspend on full pay, perhaps for may months.
However, the EAT emphasised that employers have a wide discretion to decide whether to continue with its own procedures or to wait until criminal investigations have concluded. In the case on appeal waiting was seen to be to Mr Mansfield’s advantage given that the first of the disciplinary allegations was dropped when prosecutor withdrew the charge in the criminal proceedings.
The employer’s discretion should be used fairly and reasonably in all situations. It would be sensible for Employers to ensure their Disciplinary Policies refer to criminal investigations and give them a wide discretion over whether to carry on with proceedings or wait till the outcome of criminal investigations. This is plainly to the employer’s advantage and also benefits the employee who will know what the ground rules are.
