Cooper v National Crime Agency

In assessing the fairness of a conduct dismissal, an Employment Tribunal must apply the range of reasonable responses test to the employer’s investigation and decision-making. A possible mistake of law does not automatically make a dismissal unfair. The material question is whether the employer’s understanding and any investigation of the point were reasonable in the circumstances.

There is no general rule requiring an employer to postpone disciplinary proceedings until criminal proceedings end. It must balance the possible prejudice to the employee against delay and other relevant considerations. Where an employee identifies an unusual and specific risk of prejudice, including a practice by which disciplinary material may be shared with police, that factor must be considered. There is no automatic requirement to postpone the process.

The Claimant, an employee of the Respondent law-enforcement agency, was dismissed for conduct connected with an arrest outside work. Sussex Police had provided information used in the internal disciplinary process. The Claimant did not participate in that process because criminal proceedings were continuing and he feared that information from it could be shared with the police.

The London (Central) Employment Tribunal dismissed his unfair-dismissal complaint. It held that the Respondent had reasonably investigated the concern about the receipt of police information and had reasonably refused to postpone the disciplinary process.

On appeal, the Employment Appeal Tribunal considered whether the Tribunal had properly assessed the investigation into the information-sharing concern and whether it had considered the particular prejudice said to arise from sharing information with police while criminal proceedings remained live.

1. Appeal allowed in part. The challenges to the Tribunal’s conclusions on the receipt of information from Sussex Police were dismissed. The challenge to its conclusion that the disciplinary process could proceed before the criminal case succeeded. The matter was remitted to the same Employment Tribunal.

2. The applicable statutory question was fairness under section 98(4) of the Employment Rights Act 1996. In a conduct case, the Tribunal had correctly applied the Burchell questions and the range of reasonable responses. It was entitled to find that the appeal panel had acted reasonably when it investigated the concern raised by the trade-union representative with the investigating officer. The concern had been presented as a request for reassurance, not as a developed allegation of unlawful data processing. In light of the investigator’s unchallenged explanation of standard practice, no further investigation was necessarily required.

3. Even assuming that the information-sharing might have breached the Data Protection Act 1998, that would not by itself make the dismissal unfair. An employer’s mistaken understanding of law may be relevant, but the question remains whether its understanding and response were reasonable. On the facts found, the Tribunal could conclude that the Respondent reasonably relied on an apparently standard practice and that the dismissal was fair in that respect.

4. There was no general obligation to defer an internal disciplinary process until criminal proceedings concluded. The employer and Tribunal had to balance possible prejudice to the employee against the unfairness and practical consequences of delay. However, the Claimant’s case involved a particular asserted prejudice: material generated in the internal process could be passed to Sussex Police without the safeguards of criminal procedure. That was a relevant factor in assessing fairness.

5. The Tribunal’s reasons did not show that it had considered that specific factor when applying the range of reasonable responses to the refusal to defer. Its conclusion was therefore unsafe. The Employment Appeal Tribunal did not hold that such information-sharing requires automatic postponement; the question remains fact-sensitive.

6. Applying Sinclair Roche & Temperley v Heard and Anor, remission to the same Tribunal was appropriate. It had made extensive findings, there was no suggestion of bias, and it could reconsider the limited outstanding fairness issue afresh.

• Employment Appeal Tribunal: appeal allowed in part and remitted to the same Employment Tribunal: [2017] UKEAT 0016_17_1606.
• London (Central) Employment Tribunal: dismissed the Claimant’s unfair-dismissal complaint following a hearing on 13 and 14 January 2016; judgment sent on 9 February 2016.