Oops.  Just found an unanswered question left over from our investigations webinar and blog series earlier in the year.  Apologies if it was yours. 

The question revolves around employer and investigator interactions with the Police where the subject matter of your workplace investigation is potentially criminal conduct, and is maybe best answered as a series of separate points. 

1. Even if you know or strongly believe there to have been some criminal offence committed or reported by your employee you are generally under no positive duty to report it to the Police, nor (even if you choose to do so) to do it within any set period after the issue comes to your attention.

2. If you do contact the Police, beware of the possibility that doing so without reasonably strong grounds or (in most cases) without prior notification to the employee in question could get close to constructive dismissal as a breach of trust and confidence.  [In some limited respects (especially around terrorism or certain insider dealing offices) it is a legal requirement that you do not tip off the employee, but otherwise there will rarely be good grounds for not warning him of your intention].

3. If you can avoid it, either as employer and investigator, do not make the progress of your investigation in any way dependent upon the criminal process.  First, the delay may be longer than you can manage, but much more importantly, remember that you and the Police are operating to wholly different agendas with wholly different burdens of proof.  In determining whether to start criminal proceedings the Crown Prosecution Service is looking for a better-than-evens chance of proof beyond reasonable doubt, and therefore the Police have to be scrupulous around chains of custody, and the lawful obtaining of the evidence relied upon, etc.  By contrast, the employer is seeking only to establish whether it has reasonable belief in guilt, a 51% certainty one way or the other.  If that means reliance on evidence of doubtful provenance, that is your prerogative.  The Police are looking to fit the facts into the statutory definition of a particular criminal offence, while the employer needs only conduct incompatible with the employee’s continued engagement by it.  That may not even be an offence at all, but simply the risk of hideous PR around the charge, as here.

4. In addition, linking the outcome of your investigation or disciplinary process to whether the employee is convicted is fraught with risk, since there are all sorts of reasons why a criminal prosecution may be dropped or be unsuccessful and very few of them have anything to do with whether or not you reasonably believe your employee to be guilty.  Being charged doesn’t mean you are guilty, but equally not being charged or being acquitted doesn’t mean you are innocent, only that the State cannot prove beyond reasonable doubt that you are not.  Of course in theory, this argument can cut both ways – many years ago, a client’s employee persuaded it to stand off disciplinary action pending his inevitable and resounding acquittal, an argument which looked remarkably shabby when he came out of prison 6 months later.

5. Where the employee is aware of Police involvement, whether pre or post being charged, he is likely to be advised to rely on his “right to silence”.  This is all terribly interesting for the employer, of course, but overlooks the fact that he has no such right so far as employment law is concerned.  Indeed, the mere invoking of it can justifiably raise eyebrows for the investigator – if the employee declines to answer a straight question on whether he did the thing or not in circumstances where a simple “no” would not prejudice his criminal position in any way, there is only one conclusion you can reach, yes?  Or put differently, while that is not necessarily the only conclusion you could reach, it would rarely be outside the range of reasonable responses for you to do so.

6. It is sometimes tempting for the employer to use the threat of Police involvement as a lever to encourage the employee to go away quietly.  That is unwise.  It is very likely to count as unambiguous impropriety or improper behaviour for the purposes of scuppering the without prejudice nature of any negotiations around his leaving, even if that threat is itself only made without prejudice.  If you feel so strongly on behalf of wider society that the misconduct warrants criminal sanction, then get on and make your report (ideally after taking such steps as you want on the employment front).  If you don’t feel that strongly, then waving that threat around anyway is going to play very poorly with an Employment Tribunal.

7. If the Police are already involved by the time the issue comes to your attention as investigator, you should always ask them what they can tell you about the case, what evidence they hold, who their witnesses may be, when there may be a decision on charging or a trial date, etc. All of these questions are prospectively relevant to your investigation and so it will be great disappointing when the Police decline to answer most of the more interesting ones, which they will.  However, the point from your perspective is simply to obtain the fullest information you can before reaching your conclusions, and that includes knowing that there is nothing more you are going to know from that source around the circumstances of the employee’s conduct.

8. If the Police ask you nicely for details of your investigation or for access to the employer’s records, etc., you will generally wish to assist.  Do keep in mind, however, that you are not strictly obliged to provide that information.  There may be others’ personal data involved, for which separate arrangements may need to be made.  To circumvent any such issues, it is desirable to ask at least that the Police put their request in writing.  If there is any material volume of sensitive personal data involved, especially about other employees, you can suggest that they obtain a Court Order or other enforceable demand for that information in order to provide you with an unarguable legal justification for disclosing it.  Again, where there are no applicable tipping-off rules, the provision of information about an employee to the Police is best done in consultation with that employee and his criminal lawyer, and that includes your investigation report.