When must disciplinary proceedings for charity employees await the outcome of criminal investigation?

A recent case, in which Mills & Reeve represented the employer, has provided useful guidance for employers on the circumstances in which disciplinary proceedings for an employee may have to be delayed as a result of the existence of a parallel criminal investigation.

The case involved an NHS Foundation Trust, and some of the issues considered will only be relevant to NHS bodies. However, the issue faced by the employer in deciding whether to postpone the disciplinary hearing to await the outcome of a police investigation is of wider interest.

The Court of Appeal said in its decision that in most cases an employer will be contractually entitled to proceed unless the employee can show that there is a “real danger” that continuing would result in a miscarriage of justice.

It also provided guidance about how to assess whether a decision to proceed with disciplinary proceedings, up to and including dismissing the employee, could amount to a breach of the implied duty of trust and confidence – and so entitle the employee in question to apply for an injunction.

For more detailed analysis of the decision, head over to our sister blog hr law live.


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