Must disciplinary proceedings await the outcome of criminal investigations?

A recent Court of Appeal decision provides welcome clarification about when internal disciplinary proceedings should await the outcome of a parallel criminal investigation.

In an appeal in which Mills & Reeve represented the employer, the Court of Appeal has said 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.

The appeal concerned a number of complex issues surrounding the suspension of a doctor on issues concerning patient safety, which will only arise in the context of the NHS. However the issue the employer faced in deciding whether to postpone the disciplinary hearing to await the outcome of a police investigation is of wider interest.

The court 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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