In a recent case heard by the Labour Court, a debate arose as to whether it would be fair for an employer to take disciplinary action against an employee who is currently facing criminal charges. <\/p>\n\n\n\n
Given the employee’s ongoing criminal prosecution, they worried that a disciplinary hearing could force them to provide self-incriminatory evidence, compromising their right to a fair trial. This right includes the right to remain silent and to be presumed innocent.<\/p>\n\n\n\n
During the court proceedings, the judge considered the employer’s right to take disciplinary action against their employee, as well as the employee’s right to refrain from providing self-incriminatory evidence. <\/p>\n\n\n\n
The court concluded that it did not matter if the employer pressed criminal charges before or after their disciplinary hearing, as the employee still had the option to give evidence during the hearing and waive their rights, or choose not to provide any evidence at all. <\/p>\n\n\n\n
According to the court’s findings, the criminal prosecution process comes with several safeguards to ensure that employees giving evidence at their disciplinary hearings are not unfairly prejudiced.<\/p>\n\n\n\n
In their analysis of the judgement, legal firm Wright Rose-Innes outlined four important factors that guided the ruling:<\/p>\n\n\n\n
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Wright Rose-Innes concluded their analysis by saying that “employee\u2019s rights are sufficiently protected in criminal proceedings, and therefore, the employer may exercise its right to discipline its employee by following a fair and lawful disciplinary process whilst there is a pending or ongoing criminal prosecution against the employee.”<\/p>\n\n\n\n