Disciplinary investigations and criminal charges


Particular care is needed once police are involved. A member in this situation should take urgent legal advice before participating in an internal investigation, because of their right to silence. 


In Ali v Sovereign Buses (London) Limited [2006] EAT/0274/06, Mr Ali was a bus driver accused of setting fire to his own bus. During the disciplinary he was advised by his solicitor to preserve his right to silence. He was dismissed for gross misconduct but later acquitted of the criminal charges. The EAT gave the following guidance on internal disciplinaries that are affected by pending criminal proceedings (amplified in later rulings): 


• a criminal trial can take many months. Employers have a wide discretion to decide whether to press ahead with their investigation or to wait until the criminal process has concluded as long as they act reasonably. The employer’s size and resources will be relevant;


• even if someone is arrested and charged, there must still be a proper investigation;


• a less onerous investigation is needed where someone is caught in the act or admits their misconduct;


• an employee must always be allowed to offer their side of the story. However, if they refuse to participate, even if based on legal advice to preserve their right to silence, the employer can investigate using the facts available and carry out a dismissal. Whether that dismissal is fair will depend on the information available at the time — not on what happens afterwards. For example, the dismissal can be fair even though the employee is eventually acquitted. 


Where a disabled employee is convicted of an offence, it is not normally a reasonable adjustment to expect the employer to “look behind” the conviction to understand the background, for example, where the employee carried out an offence under the influence of prescription drugs (Howarth v North Lancashire Teaching PCT [2014] UKEAT/0294/13/228).