This serious allegations guidance article is accompanied by a webinar which was hosted on 17 June 2021; and the webinar recording is now available for you to watch on demand.
Serious allegations in the workplace can arise at any time; whether it is claims of bullying, serious breaches of health and safety rules or a breach in trust and confidence. The ramifications are significant – how do you manage the employment relationship when it arises? What processes do you use and how to address it? How do you address the issue with as little risk as possible?
In this HR guidance article, we look at the options available to employers for addressing very serious workplace allegations.
1. What constitutes a ‘serious’ allegation?
Being able to determine the severity of an allegation is crucial for how you address it. We know that by not managing a case correctly, a tribunal can find in favour of an unfair dismissal, simply for an improper process having been conducted.
Misconduct allegations can be classed as either misconduct or gross misconduct.
- Misconduct allegations relate to matters which contravene your rules and regulations and whilst serious, overall, in the context of the employment relationship whilst they may weaken the employee-employer relationship they are not enough to justify breaking the contract and dismissing.
- Gross misconduct is misconduct which is extreme or abnormal (gross) and is blameworthy, and in some cases, can be criminal offences too. It is so serious that it constitutes a fundamental and repudiatory breach which irrevocably destroys the heart of the contract. Misconduct of this type is so serious that in the circumstances, an employer cannot reasonably be expected to employ the individual any longer. For this reason, acts of gross misconduct warrant dismissal without notice (summary dismissal).
This hot topic focusses on those allegations that would usually constitute gross misconduct. There are many examples of gross misconduct that can be shared across all businesses and sectors (theft, fraud, violence, acts of bullying and harassment) however, each organisation is entitled to set their own rules of behaviour and therefore, depending upon that business and the sector in which it operates, there may be further examples unique to that organisation.
So how do you distinguish between gross misconduct and misconduct? Case law teaches us that for a gross misconduct dismissal to stand in tribunal, certain conditions must be met when it comes to treating the matter as gross misconduct:
1. The misconduct must constitute a fundamental breach going to the heart of the contract.
Whether or not it is fundamental will depend on factors such as:
- The severity of the actions e.g., theft, violence, and direct discrimination.
- The nature of the act and the relevance to the employee’s key duties (can you still trust the person to carry out their key duties?).
- The nature and circumstances of the employer (how will this impact reputation, what is common in the culture of that employer? Swearing in one environment may be gross misconduct (‘GM’) but in another is a daily occurrence etc).
- The impact of the breach.
2. The misconduct must be either deliberate and wilful, or grossly negligent.
Consider factors such as:
- Whether there is a clear rule or policy that the employee knew.
- Whether the employee would have known in advance that their actions may be regarded as a sackable offence.
- The motivation of the employee.
- The intentions of the employee.
How allegations can arise
There are several ways in which allegations of a serious nature can be brought to an employer’s attention:
- An employee may come to you (or another manager) to raise their serious concerns about the behaviour of another colleague
- You (or another manager) may witness the inappropriate behaviour
- The company may receive written communications from a third party (which can also include communication via social media) in which serious allegations are made
- An employee’s inappropriate behaviour may come to light via social media (be careful though in this situation as employees have a right to a private life so care must be taken if the matter is to be pursued, see section two for further clarity).
Depending upon how the allegations have been brought to your attention, will determine which company policy is used to address it. For example, in point number 1 above, you would typically progress the matter through the Grievance Policy to address. This may then lead on to a disciplinary process taking place. Whereas regarding points 2, 3 and 4 noted above, these would require the company to address through the disciplinary process, there is no grievance to deal with first.
2. Risk of Employment Tribunal Claims
When serious allegations arise, it immediately presents potential risk for the employer because to deal with it inadequately (or not at all) can lead to claims at an Employment Tribunal. Depending on the situation, claims that could arise include constructive dismissal, breach of contract, unfair dismissal as well as discrimination.
A dismissal can be found to be unfair in two key ways, if it is procedurally unfair and if the reason for the dismissal is unfair. This means that even if you have a good reason for the dismissal, you can still fail at tribunal if the process you followed is flawed. A critical part of ensuring procedural fairness is ensuring that you follow your company’s own grievance and/or disciplinary policy, as highlighted in section four.
3. Key actions for managing serious allegations safely
In this section we consider what the key actions are for employers to manage serious allegations safely to prevent employment tribunal claims.
1. All reasonable investigations must be carried out
Whenever you become aware that there is an issue of misconduct, it is necessary to investigate the circumstances to gather the relevant facts. The purpose of this is to establish a fair and balanced view of the facts before deciding on next appropriate steps. Investigations must be thorough and should leave no stone unturned.
Regardless of whether you are dealing with the allegations under your grievance policy or using the disciplinary policy, an investigation is a fundamental part of both policies and is required, whichever policy you are conducting it under.
When considering whether all reasonable investigations have been carried, consider:
- Has the employee’s version of events been investigated fully for verification? Not just what we think happened!
- Are there any key statements, reports, documents, or footage etc which might shed light on or prove what happened, that has not yet been collected?
- Have you been thorough? Have all fair avenues for consideration been exhausted?
- Notwithstanding the above, the investigation should avoid invading privacy unnecessarily or involving more people than is required.
2. When to address allegations arising from social media
Allegations can arise via social media, but care must be taken. When alerted to posts made via social media there is a balance to be struck between an employee’s right to a private life outside of work and the reputation of the business. As an employer, you may be able to act under your internal policies if the posts call into question the reputation of the company or if it is being used to bully and/or harass colleagues or third parties linked to your business.
Having clear company policies, including IT/Social Media policy, which outline your expectations around how your employees conduct themselves online, will be crucial in your ability to address any allegation that comes to light.
It is not possible to talk about minimising risks in gross misconduct cases without talking about suspension and how to suspend properly. Suspension should be a last course of action and not a ‘knee jerk’ reaction; it carries risk if it is not carried out correctly and can quickly create ill feeling.
If there is a reasonable suspicion of gross misconduct, the following examples are justification for suspension (as opposed to alternatives):
- there is genuine belief that there is a threat to the business or to other employees
- you cannot properly investigate the allegation whilst the employee is present (as they may be able to tamper with the evidence or destroy it)
- where working relationships have broken down
- there are genuine concerns for the health and safety of employees or others.
For a gross misconduct dismissal to stand, suspension (or an alternative) must have taken place as soon as gross misconduct was suspected. There should be no delay, therefore suspension should take place the same day that the suspected misconduct is found out about. A delay in doing so could undermine the fact you consider the actions to be gross misconduct.
The Acas code advises that suspension should be reviewed regularly to ensure it is not protracted. It is important to ensure that suspension does not last any longer than is necessary. Protracted suspensions can be viewed as unreasonable, which can have a bearing on whether the process was fair (as required by section 98 of the Employment Rights Act).
The Acas code also advises that ‘It should be made clear that suspension is not an assumption of guilt and is not considered a disciplinary sanction.’ it is worth confirming this in a suspension letter.
Tribunals are increasingly keen to see that employers have considered appropriate alternatives to suspension. Tribunals view suspension as damaging to the employment relationship, hence why a knee-jerk reaction can make a tribunal regard the employer as complicit in an unfair process, or part of the relationship breakdown. So, if you suspect gross misconduct but you cannot justify suspension for one of the reasons above, you should consider alternatives instead.
An alternative to suspension will be appropriate where the risk of the gross misconduct being repeated can be removed by a measure other than complete suspension from work.
Alternative options available could include:
- Where the allegations relate to working relationships, consideration could be given to temporarily redeploying one of the parties, changing reporting lines or making other managerial arrangements in the short term;
- If the allegations relate to potentially fraudulent activity, consider if you can remove any access to particular systems which could risk further fraudulent use (so long as the role can still be undertaken of course)
- Putting in place other temporary arrangements, such as additional checks and monitoring of their work, whilst gross misconduct is suspected
As part of this risk management approach, regardless of whether the decision is to suspend or not, full written records must be kept and retained to demonstrate your thought process in reaching a decision. This will demonstrate to a tribunal that a) you believed the matter to be sufficiently serious as soon as it came to light and b) you had considered all options available to you for managing the risk the allegations presented and c) that suspension, if conducted, was not a ‘knee jerk’ reaction and was in fact the last course of appropriate action available.
4. Substantive Justification and Procedural Fairness
As an employer, when handling serious allegations, you are bound by principles of substantive justification and procedural fairness.
Substantive justification considers the allegation itself in terms of whether it is legally capable of being grounds for you undertaking disciplinary action. It must be identifiable as a breach of the disciplinary policy or some other breach and justifies starting disciplinary proceedings. Therefore, it is vital that you have company policies setting out the rules, standards and expectations during employment. Furthermore, when invoking the company’s disciplinary policy, articulating which policy is alleged to have been breached is also so important.
Procedural fairness covers every aspect of the process from when the allegation is first brought to the attention of you (or another manager). It includes:
- Whether the employer has adhered to their own applicable policies
- An employee will not be judged until they have been given a full chance to prepare and submit their case
- No decision is valid if the decision maker has made a biased decision (this means the employer must not have any pre-determined ideas and the chair is impartial)
- To have notice of the allegations of misconduct made against them
- That all evidence is provided to the employee in advance of a disciplinary hearing to enable them to effectively prepare their own case
- To be heard when answering the allegations
- The use of anonymous witness statements should be in exceptional and rare circumstances, as by doing so, it interferes with the accused employee’s ability to prepare their case and respond. Where they are used (such as where the witness is fearful of repercussions such as when they have been subject to harassment), then look to find other evidence that supports the anonymous witness statement.
In unfair dismissal claims, a tribunal can require an employer to pay up to 25% more in the compensation award for its failure in following the Acas code of practice on handling disciplinary and grievances.
5. Does the decision to dismiss without notice (summary dismissal) fall within the band of reasonable responses?
This question is asked in respect of any misconduct dismissal. It is essentially the reasonable person test, which asks whether a reasonable employer would dismiss an employee in the same circumstances?
Consider factors such as:
- Length of service (a long length of service tends to be looked upon favourably by a tribunal).
- The employee’s previous disciplinary record.
- The employee’s remorse and subsequent conduct through the proceedings.
- Whether it is likely the misconduct would be repeated. (Are the circumstances so unique and rare that it is unlikely to happen again?).
6. Can you show that you have reasonable grounds to hold the belief that the conduct occurred, and a dismissal is therefore appropriate?
This factor requires the employer to consider whether, it is reasonable to interpret the evidence available to mean the employee committed gross misconduct, or could it be interpreted differently. The focus on this requirement is on ‘reasonableness’ of perceiving the situation and the evidence as gross misconduct.
7. Right of appeal
In UK employment case law, an appeal is generally regarded to be a significant part of legally fair procedure. Not to offer an appeal, may render a dismissal as unfair in an employment tribunal, based on procedure (even if the reason for dismissal was fair).
Additionally, the Acas code of practice says that employees should be given the right of appeal against a disciplinary or grievance outcome. Where this is not offered, then it can go against you at an employment tribunal. A tribunal can require you to pay up to 25% more in the compensation award for failure to comply with the Acas code of practice.
8. Allegations raised by ex-employees
Employees have three months (less one day) from the effective date of termination, in which to raise an employment tribunal claim regarding constructive/ unfair dismissal. Discrimination claims also must be raised within 3 months of the act(s) of unlawful discrimination in an employment tribunal and can be brought within 6 months in civil court. Tribunals want to see that employers have attempted to appropriately resolve matters internally before getting to the courts. It is therefore important that when dealing with allegations raised by a former employee that you take necessary action.
The Acas code of practice on disciplinary and grievance is silent on grievances raised by ex-employees but under the Trade Union and Labour Relations (Consolidation) Act 1992 (which applies to current and former employees), Part IV, chapter III deals with the requirement for codes of practice issued by Acas to be adhered to. This presents the argument for using the grievance procedure after employment has ended, as in the case of Base Childrenswear Ltd v Otshudi EAT/0267/18.
It was in this case, that the Employment Appeal Tribunal found that in the circumstances, it was reasonable for the employer to have followed its full grievance procedure when the grievance and subsequent appeal had been raised after employment had ended.
Even if a former employee raises allegations outside of the three months, a reasonable employer will look to take steps to explore and establish the validity of any claim, in line with the implied duty of care to protect employees at work.
4. Commercial decisions
There are occasions when organisations wish to take a commercial approach in resolving workplace concerns using settlement agreements. This does not have to mean that they are accepting liability for what has occurred, but it can be a more efficient, and cost-effective way in which to close the matter and ultimately part ways with an employee without repercussions of an employment tribunal.
In some situations, the time, effort, and cost involved in defending a tribunal claim can outweigh the costs that could be made to the employee via a settlement agreement. Of course, for some organisations, the principle of the matter outweighs the potential cost, and they therefore wish to fight the case at tribunal. It is a matter for each organisation, and each situation that arises. It is usually helpful to gauge towards the end of any internal process (disciplinary or grievance), if there are risks on the case, the prospects of success if it were to go on to become a claim at tribunal before deciding on whether to enter a protected or without prejudice conversation.
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