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Question: "One of our employees entered the site unlawfully at the weekend and caused criminal damage. A neighbour saw this and called in the police who are charging him with an offence. Must we wait for them to complete their enquiries and charge the man before we are able to take disciplinary action against him?"
HR Tip: No, you should proceed with your normal disciplinary process without delay. The police involvement may complicate matters somewhat, but nevertheless follow your normal process as closely as you can. Carry out a thorough investigation. The police are unlikely to provide you with any of the evidence they have acquired so you need to generate your own.
Assuming you have sufficient evidence to back your complaint, invite the employee to a formal disciplinary interview and conduct matters in accordance with the statutory dismissal and discipline procedure and your own domestic procedure. If the employee is unable to give evidence because he is in custody, put your questions to him through his solicitor. If you do not get satisfactory replies, make do with what you have got.
If the employee is unable to attend the disciplinary interview for the same reason, write to him through his solicitor several days in advance enclosing copies of the evidence against him, stating clearly when the meeting is to be held, explaining the right to have a work colleague or trade union present, and inviting him to give you a written response to the complaint. Then proceed with the meeting in his absence. Write giving your decision and, if you have awarded a sanction, offer the right of appeal on the same conditions.
This may sound complex but you really must go through the process in the interest of justice. Ignore what the police do or what a court might subsequently decide. Do the best that you can to be fair to the man, and ultimately make your decision on what you believe to be true, based on the available evidence.
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