Criminal Parallel proceedings – when is it appropriate for parties to postpone?

Mon, 21 Apr 2014

Naomi Owen considers the pros and cons of applying for a postponement when criminal proceedings are pending.

There are numerous reasons that may lead one or both parties to seek a postponement of a final hearing in the Employment Tribunal.  One such reason is where criminal proceedings are running in parallel.  On the strict interpretation of the law, there is no reason why the cases cannot continue in tandem, as the EAT decided in the case of Firouzan v Mtreoline Travel Limited UKEAT/0233/12/CEA.

However the practical implications may dictate otherwise – for example:

Pros:

-       Where there is a risk of self-incrimination, the parties’ privilege against self-incrimination remains intact;
-       Where the issues between the parties would benefit from further investigation, the police may be better placed, and armed with more extensive resources, to conduct such investigations;
-       It may well be that the parties can avoid further costs of litigation by allowing the criminal matter to run its course first, particularly if the outcome of an investigation or trial would be determinative of the tribunal case. 

Cons:

-       The parties will not be able to dictate the direction that criminal investigations/proceedings take, and therefore lose some control over the material that may surface;
-       There will inevitably be delays in awaiting the outcome of criminal matters and parties may not wish to put off the conclusion of the employment matter;
-       There may be no guarantee that the resolution of criminal proceedings will short circuit the tribunal matter.

A case in which the pros outweighed the cons was at the centre of a media storm earlier in March.  I was instructed by 3 out of 4 claimants all claiming unfair dismissal against their ex-employer.  Two days prior to the commencement of a ten-day hearing, the respondent was informed that the police intended to investigate matters at the very heart of the tribunal case.  The national press found out 24 hours later, when “Operation Trojan Horse” hit the headlines. 

The judge granted the respondent’s urgent application to postpone on the morning of the hearing, in order to allow the West Midlands Police to reopen an investigation originally commenced by the claimants (http://www.bbc.co.uk/news/uk-england-birmingham-26517660). 

There was a potential risk that by proceeding with the ET hearing, evidence in the criminal investigation would have been compromised or undermined.

However it must not be forgotten that the role of the Employment Tribunal in applying the Burchell test, is to focus on the reasonableness of the Employer’s actions - an Employee not guilty of a criminal offence may have his or her employment fairly terminated. Therefore, postponements will not normally be granted.  

All parties eagerly await the outcome of the investigation in ‘Operation Trojan Horse’.

Please click here to view Naomi Owen's profile. 

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