Introduction

Recent events in the Conservative party have focused attention on what an employer should do if one of its employees is accused of committing a crime. A Conservative member of Parliament (MP) has been accused of rape, but at the time of writing has not been charged. It transpires that the chief whip had been aware for some weeks of allegations of 'abusive behaviour and threats' made against the anonymous MP by a parliamentary aide. Despite this, no investigation took place.

The MP has now been arrested and bailed, but there has still been no investigation by the party. He has not been suspended from Parliament by Commons authorities and the Conservative whip has not been withdrawn. The party's decision not to withdraw the whip was supported by Prime Minister Boris Johnson, who said "I think we've got to wait for the police to decide whether they want to make charges and take a decision on that basis". But is that correct?

Must employers wait for a charge or conviction?

The short answer is no.

Situations like this one require sensitive handling and knee-jerk reactions are best avoided. Not all criminal allegations will have a bearing on the workplace, and employers can often safely decide that these issues are none of their business. Motoring offences resulting in a fixed penalty are a common example of criminal offences to which many employers turn a blind eye.

The perspective of the alleged victim and the accused must be taken into consideration, as well as any potential impact on the organisation or the people with which the accused person will have frequent contact. If the alleged victim and the accused are expected to work alongside each other, if there is a significant potential risk to the safety of other people or if the nature of the allegations alone is damaging the reputation of the organisation, employers are, at the very least, entitled to act.

Similarly, an allegation which is unrelated to work but which results in bail conditions which prevent an employee from doing their job is likely to require action on the part of the employer.

Where an employee is accused of sexual assault or rape by a colleague, the Advisory, Conciliation and Arbitration Service (ACAS) guidance on sexual harassment is unflinchingly clear: "If the incident has been reported to the police or it's going through a court, [the] employer must still investigate [the] complaint."

Of course, the MP in question is not an employee so the precise processes to follow may differ, but the essential requirement to investigate must surely still apply.

First step: investigation

Employers' starting point should always be an investigation in order to establish the facts and determine whether a disciplinary (or similar) procedure should be instituted.

At the outset of that process, employers must decide what arrangements should be made while the investigation runs its course. For example, could the accused be asked to work from a different location on a temporary basis or have their duties modified? The alleged victim may ask for changes to their own working arrangements (eg, to remain away from their normal workplace as an interim measure), but employers should be careful not to impose such arrangements on complainants as this could be treated as victimisation.

An important issue to consider is the question of suspension. Suspension of the accused should be a last resort. If they are suspended, this should:

  • be on full pay;
  • be kept as short as possible; and
  • not be seen as a penalty in its own right.

If the accused is not an employee but comes into contact with an employer's organisation in a different capacity – such as a client, contractor or supplier (or MP) – the organisation should consider what other safeguards might be appropriate while the investigation takes place.

What if the accused is in police custody or refuses to cooperate?

When investigating highly sensitive allegations, which will inevitably have a significant impact on both the accused and the alleged victim, it is vital that the investigation is handled appropriately, with wellbeing safeguards in place. Ideally, the investigator will have had specialist training and experience; employers may wish to consider bringing in a specialist workplace investigator to handle the process.

An accused individual may refuse to answer questions (potentially based on legal advice) if they feel that what they say to their employer may be used against them in criminal proceedings. Nevertheless, in most cases, employers will not be prepared to delay their investigation until the outcome of any criminal proceedings is known, bearing in mind that this may take months or even years. The ACAS guide to disciplinary and grievance procedures (ACAS guidance) requires an employer to hold any disciplinary hearing without unreasonable delay.

The ACAS guidance tells employers that they should investigate the facts "as far as possible" but makes clear that it is unnecessary to await the outcome of a criminal prosecution before taking fair and reasonable action. Employers must conduct their own investigation and should not rely on the police to do this for them.

Where the accused refuses to cooperate with an investigation, the ACAS guidance advises that this "should not deter an employer from taking action" – instead, the accused should be "advised in writing that unless further information is provided, a disciplinary decision will be taken on the basis of information available and could result in dismissal".

If the accused decides not to take the opportunity to provide information, a decision can be made based on the other evidence available at the conclusion of the investigation. The investigator should ensure that they look for evidence of innocence as well as evidence of guilt.

In order for disciplinary action to be taken at the conclusion of the investigation, employers must have a reasonable belief in the accused's guilt, based on a reasonable investigation, and the level of investigation carried out must have been within the "band of reasonable responses".

What if the police decide not to charge or the accused is acquitted?

Employers are not bound by the outcome of the police process. There will undoubtedly be situations where employers decide that it is appropriate to continue their investigation or disciplinary process even after the police process is abandoned or the employee has been acquitted at trial. The reason for this is that criminal and civil proceedings are very different – the standard of proof for a crime is 'beyond reasonable doubt', whereas in a civil matter, 'the balance of probabilities' (ie, more likely than not) is enough.

Employers must reach their own reasonable decision based on a fair and reasonable investigation of the facts.