Criminal investigations – How do I handle it?

As part of our ‘How do I handle it’ series on employment law and difficult workplace scenarios, Patricia Rooney, Director at Tughans, considers the following problem and offers some practical advice.

This month’s problem concerns:

The PSNI have arrived at our office and arrested a member of staff.  I understand the allegations concern a matter outside work.  There are rumblings from other staff however that they will not continue to work with the employee who has been arrested.  What can we do?

If you have not done so already, you could consider suspending the employee pending receipt of further information from him, and pending developments in the ongoing Police investigation.  As with any suspension, you should confirm this in writing, setting out the terms of the suspension i.e. what he can and cannot do and remind him that he remains an employee during this time. The duration of the suspension should be in line with your Disciplinary Policy or, if the Policy is silent on that, only so long as is reasonably necessary to facilitate the internal process. You should also ensure he understands that he is to co-operate with the Company’s investigations about the matter.

I suggest you also invite the employee to an investigation meeting.  This will be an opportunity to gather information from him about the Police investigations.  Whilst there is no statutory right to be accompanied at an investigation meeting, you may wish to offer the employee this opportunity, depending on the nature of the allegations against him, in order to allow him some comfort and make the investigation meeting as useful as possible. You might also wish to consider meeting off site as there is a better chance that he will attend.

You could also attempt to speak with the investigating officer at the PSNI to see if any more information is available.  This might not be possible however as the Police may not wish to disclose any detail that would prejudice their ongoing investigation.

I would recommend that you tread carefully.  Whilst you have concerns raised by employees about this particular individual, you should remember to carry out a fair investigation, and disciplinary and appeal process if the matter progresses.  Check the Company’s Disciplinary Policy to ascertain whether there are any provisions governing matters of this particular kind in these circumstances.  Also, ensure the process remains confidential, avoiding the opportunity for conversations or disclosure of information that could prejudice your internal investigation/disciplinary process.

In discussions with the employee concerned, ensure that he is aware that there is no predetermined outcome to the ongoing internal investigation. Subject to the nature of the allegations against the employee, the Company’s Disciplinary Policy may not actually cover the alleged behaviour.  Therefore, whilst the Company may have a valid reason to initiate disciplinary action against this employee following investigation, it is possible that the reason for dismissal may fall under “some other substantial reason” rather than a charge under one of the examples of misconduct set out in the Disciplinary Policy.  It will be necessary to provide full information to the employee concerned to ensure he has an opportunity to participate in the investigation and disciplinary process, if disciplinary action is taken.

In advising the employee that the Company has not made any judgment about the criminal allegations against him, ensuring a full and transparent investigation process should reduce the risks that the employee resigns alleging constructive dismissal if he believes there has already been a predetermined decision to dismiss him.

As necessary, remind his colleagues that all employee related issues will be treated confidentially and in line with Company Policy. You could consider if there are grounds for any disciplinary action against the employees if they continue unreasonably to refuse to work with this employee or carry out their work instructions. This possible course of action would require additional information to advise fully.

Proceed slowly and keep in contact with the employee during the period of suspension in order to ensure that at any stage of the investigation, or disciplinary, process the Company is acting with all of the relevant and necessary information.  Encourage those involved in the internal process that they are dealing with the employment relationship and must act fairly on the information available to them, without being unduly influenced by the current Police allegations, none of which have yet been proven.

Patricia works exclusively in Employment Law and for further advice can be contacted by Telephone: 028 9055 3300 or Email: patricia.rooney@tughans.com

 

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While great care has been taken in the preparation of the content of this article, it does not purport to be a comprehensive statement of the relevant law and full professional advice should be taken before any action is taken in reliance on any item covered.