Delays Pending Police Investigation Do Not Make A Dismissal Unfair

May 2010

Employers are sometimes faced with the situation where an employee’s misconduct results in a police investigation. Employers are then in a quandary as to whether they should postpone or continue their own disciplinary proceedings until the criminal investigation has concluded. In the recent case of Secretary of State for Justice -v Mansfield, the Employment Appeal Tribunal (EAT) has decided that in these circumstances, an employer’s decision-maker has a wide discretion whether to continue or postpone the disciplinary hearing such that related delays would not necessarily make a dismissal unfair.

The facts

Mr Mansfield (“M”) was employed by the prison service as a prison officer at HMP Pentonville. In April 2006 allegations were made against him that he had orchestrated violence amongst prisoners and planted drugs on a particular prisoner. The first allegation rested principally on evidence of prisoners, whilst the second rested principally on the evidence of other prison officers. He was suspended from duty on full pay. On 2 May 2006 the matter was referred to the police for it to carry out its own investigation. During the period of the police investigation, the internal investigation was not continued. Subsequently the allegation of violence was dropped. Following a hearing on 30 April 2007, M was acquitted of the drug allegations. During May, June and July 2007 the matter was not progressed, except that on 27 June 2007, M was summoned to meet the then prison governor. The governor informed him that the drug allegation would be continued and be dealt with as a disciplinary matter. In August 2007, another governor undertook an investigation into the drug allegations. This investigation concluded at the end of October 2007 with a detailed report. On the strength of the report, M was informed that he would be subject to a disciplinary charge. He subsequently attended a disciplinary hearing on 23 January 2008, which lasted for 3 days. At a meeting with the prison governor on 6 February 2008, M was dismissed. His appeal against the dismissal failed.

M subsequently brought proceedings in the employment tribunal for unfair dismissal. The employment tribunal ruled that M had been unfairly dismissed because, amongst other things, there had been lengthy and unacceptable delays in the proceedings leading up to M’s dismissal. The tribunal felt that it was bound by a previous EAT decision that, in certain circumstances, a delay in the conduct of a disciplinary investigation might make an otherwise fair dismissal unfair.

The employer appealed the tribunal’s decision to the EAT. The EAT had to consider whether the tribunal was entitled to decide that the employer was unreasonable not to continue, or offer to continue, the disciplinary proceedings on the planting of drugs allegations during the police investigation. The EAT held that a decision-maker forming a view on whether disciplinary proceedings should be continued alongside a criminal investigation has a wide discretion. It is unusual for a decision to postpone the disciplinary proceedings whilst continuing to pay the employee to be criticised on the grounds of delay. Consequently, the EAT found that the employer’s decision to postpone the disciplinary hearing whilst the police were still gathering evidence was entirely proper.

Practical Impact

This case deals with a common problem. It is now clear that an employer can postpone a disciplinary investigation during the course of a police investigation provided that there is no prejudice to the employee. Furthermore, the employer is unlikely to be criticised for a lengthy delay in dealing with the disciplinary procedure in these circumstances if the employee is suspended on full pay.

Should you have any queries please contact:

Adele Martins – [email protected]
Susan Thompson – [email protected]
Anthony Thompson – [email protected]
Catherine Yallop – [email protected]
Moji Oyediran – [email protected]