08 June 2010 #Employment
Employers are often faced with procedural dilemmas on how internal proceedings are to run whilst ensuring a reasonable and fair process is carried out.
What should an employer do in a situation where external criminal proceedings are taking place against one of its employees? Should they begin their own internal disciplinary proceedings immediately or wait for the external outcome?
The case of Donaghey v Secretary of State for Work and Pensions looked at this issue.
Following a back injury in work, the employee was awarded disability living allowance from 1995 for an indefinite period. However, investigations carried out by a fraud department found that the employee had not been entitled to the allowance from 2006.
The employer decided in this case to proceed with its own disciplinary action before waiting for the result of the prosecution. The employee was subsequently dismissed.
Had the employer acted fairly by doing this?
The employer had carried out a reasonable investigation and had considered the evidence in coming to a decision to dismiss. It was held that the employer had identified the difference between arriving at a decision on the balance of probabilities as against the criminal standard of reasonable doubt. The employers therefore had acted reasonably in their actions and the employee had been fairly dismissed.
Employers must be mindful of the fact that they have a wide discretion in postponing any disciplinary investigations pending criminal trials and consideration must be given to the circumstances of each individual case before taking necessary and reasonable action.