In an article written for the Evening Standard’s City Voices series and reproduced here, Employment partner Charlie Thompson explored the growing complexities of workplace misconduct investigations by employers.
Barely a month goes by without a public scandal about a high profile individual accused of serious wrongdoing, and an organisation criticised for either somehow knowing nothing about it or knowing and appearing to look the other way.
These stories are more complicated than they first appear. They are also not new, but may now seem more prominent because of changing attitudes towards corporate culture, and with more people speaking out in the media and online – which puts employers under greater scrutiny.
Years ago, a complaining employee would commonly be paid off in exchange for agreeing to a confidential settlement. The matter would not be fully investigated and considered resolved, until the next time. That was easier and cheaper than addressing the underlying issue, but has become an increasingly unworkable strategy in the social media era where news leaks faster than ever and the #MeToo campaign has a lasting legacy.
The best route to tackling higher profile misconduct stories is, legally, the same as the prosaic disciplinary and grievance issues raised in workplaces up and down the country every day.
When an employer becomes aware of an allegation, it will have to decide what to do and be ready to justify it later. Deciding to do nothing is still a decision.
Often these matters fall within the scope of the grievance procedures all employers are required to have. Whilst each can vary, they all need to meet minimum standards, including an investigation into what happened and each side getting a chance to tell their story before the employer decides what to do next. Employers might then need to defend their decision to a court, tribunal or regulator.
The employer is usually between a rock and a hard place. It must strike a delicate balance between three potentially competing interests – the employer’s, those complaining and the people being complained about. If the employer gets it wrong, it may be sued by one or both other sides.
This dynamic can be extremely difficult for all concerned, because if anyone loses confidence in the fairness of the process, the employer risks further criticism. So whilst employers are not normally required to appoint an external investigator, that may help prevent accusations of a cover-up.
A typical first flashpoint in these cases is whether to suspend the employee during the investigation. Most employment contracts allow this for a reasonable period with the employee on full pay. Employers tend to insist that suspension is a “neutral act”, not a disciplinary sanction but a reasonable step which allows the investigation to conclude more quickly with less risk of interference.
That said, employers need to be careful of suspending as a knee-jerk reaction, especially in an era of remote working where accusers and the accused may not even be in the same building. Employers must be mindful that, in reality, it can be very difficult for an employee to return from suspension.
This becomes even more of a high wire act when the allegations are so serious that they could have serious implications for people’s careers.
Striking a fair balance between three parties is difficult enough, but when others join the fray it becomes even more complex.
In some sectors, such as financial services, the employer has a duty not just to its employees but also to the regulator. It cannot mislead the regulator or conceal relevant information. Where a separate investigation by the regulator is triggered, the employee at the centre of the allegations can feel even more vulnerable, especially if they feel that the allegations are untrue or that it is disproportionate or premature to notify the regulator.
The complexity does not end there. Where there is a live police investigation, an employer must take steps to ensure its own processes do not inadvertently prejudice it.
What’s more, whilst most disciplinary and grievance matters are discreet, if the public become aware there is the further challenge of scrutiny and criticism – whether legitimate or totally uninformed.
All this makes for a muti-tentacled, sprawling collection of investigations. But the same golden rules apply – an employer has little to fear if they act fairly and reasonably.
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