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 article, we look at the options available to employers for addressing very serious workplace allegations.
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:
1. An employee may come to you (or another manager) to raise their serious concerns about the behaviour of another colleague
2. You (or another manager) may witness the inappropriate behaviour
3. The company may receive written communications from a third party (which can also include communication via social media) in which serious allegations are made
4. 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.
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.
Key actions for managing serious allegations safely
Get further information and guidance how to manage serious allegations by reading the full article, at https://www.hrsolutions-uk.com/how-serious-allegations-can-be-handled-safely/. We also cover the following:
- All reasonable investigations must be carried out
- When to address allegations arising from social media
- Suspension and how to suspend properly
- Substantive Justification and Procedural Fairness
- Does the decision to dismiss without notice fall within the band of reasonable responses?
- Can you show that you have reasonable grounds to hold the belief that the conduct occurred?
- Right of appeal
- Allegations raised by ex-employees
- Commercial decisions.
Further HR Guidance
· Webinar Recording: you can watch the HR Solutions webinar about ‘How to Deal with Bullying and Harassment’, and download the webinar slides, at https://www.hrsolutions-uk.com/services/serious-allegations-hr-webinar/.
· HR Knowledge Base: as part of your PRCA membership you can get access to the HR Knowledge Base, which is the go-to resource for thousands of business owners and managers across the UK. The HR Knowledge Base includes HR documents, templates, legal updates, news and hot topic articles as well as access to free webinars and HR seminars. To find out more call 0844 324 5840 or visit here.