Secretary of State for Justice v Mansfield

Where disciplinary allegations are also investigated by the police, the employer’s decision-maker has a wide discretion whether to continue or postpone the disciplinary process. Postponement will not ordinarily make a dismissal unfair where it is justified by the need to avoid prejudice to criminal proceedings and no material prejudice from the delay is established.

An employment tribunal must distinguish the employee’s honest belief in misconduct from the existence of reasonable grounds for that belief. It must assess the fairness of the employer’s decision at the time it was made and avoid substituting its own view of the evidence for that of the disciplinary decision-maker.

The respondent, a prison officer, was suspended after allegations that he had orchestrated violence among prisoners and planted drugs near a prisoner’s cell. The allegations were referred to the police. The criminal proceedings ended without a conviction, after which the Prison Service resumed its internal disciplinary process and dismissed him.

An Employment Tribunal found the dismissal unfair because of delay and because the dismissing governor did not genuinely believe the respondent was guilty. The Secretary of State appealed, challenging both conclusions. The central issues were whether postponing disciplinary proceedings during the police investigation was unreasonable and whether the tribunal had properly applied the principles governing belief, reasonable grounds and investigation.

1. The appeal was allowed and the claim was dismissed. The Employment Tribunal’s finding that the delay rendered the dismissal unfair could not stand.
2. An employer deciding whether to continue disciplinary proceedings while a criminal investigation or prosecution is pending has a wide discretion. Prison Service Order 8460 generally contemplated continuing disciplinary action, but also required care to avoid prejudice to criminal proceedings and mandated postponement in specified circumstances. In this case, postponement was proper because the police were investigating serious allegations and the criminal prosecution was continuing. The tribunal identified no actual prejudice caused by the postponement and could not say whether earlier proceedings would have strengthened or weakened the case.
3. The principles in RSPCA v Cruden and A v B establish that substantial delay may itself contribute to unfairness where it lacks good justification. Proof of prejudice is not essential, although prejudice may provide an additional ground of challenge. Those authorities did not make the present postponement unreasonable.
4. The tribunal correctly recognised that the investigation was thorough and that there was evidence capable of supporting a reasonable belief in guilt. It then confused the question whether the governor honestly believed the respondent guilty with the separate question whether there were reasonable grounds for that belief. Its reasoning substituted the tribunal’s assessment of the evidence for that of the governor, contrary to British Home Stores v Burchell, Foley v Post Office and London Ambulance Service v Small.
5. If the tribunal truly meant to find that the governor lacked an honest belief, that finding was reached without the issue having been put to him in cross-examination and involved a failure of due process. More probably, the tribunal had concluded that there were insufficient reasonable grounds. Either interpretation was legally defective.

• Employment Appeal Tribunal: allowed the Secretary of State’s appeal against the Employment Tribunal’s decision and dismissed the unfair-dismissal claim.
• Employment Tribunal, Watford: found the dismissal unfair on grounds of delay and the dismissing officer’s alleged lack of genuine belief. The citation was not stated in the judgment.