Rules of misconduct

There has been considerable emphasis recently on the rights of employees not
to be harassed or bullied in the workplace. 
But, says Stuart Neilson, the alleged perpetrators of bullying have
rights too and in dealing with the allegations of bullying and harassment
employers must not lose sight of those rights

Recently there has been an upsurge in the number of employees who claim that
they have been bullied or harassed at work. A number of trade unions are actively
pursuing campaigns aimed at raising awareness of bullying and harassment in the
workplace. As a result, there is increasing pressure on employers to be seen to
act quickly and decisively with those who are alleged to have carried out such
acts. But don’t bullies have rights too? The answer, of course, is that yes
they do and that employers will overlook these rights at their peril. The rush
to judgement of an alleged bully may seem like a good idea at the time but it
is something employers may have cause to regret as they wait for the employment
tribunal to come around.

When dealing with any misconduct case, including allegations of harassment
or bullying, employers must bear in mind the fundamental rights of the
employees who are facing the misconduct allegations. Three of the key
principles.

– The right to know the allegations.

– The right to be notified of the evidence in support of the allegations.

– The right to a fair and impartial hearing.

These are not the only difficulties an employer will face in dealing with
the alleged harasser or bully. It may need to determine whether there is
grounds for a grievance hearing or disciplinary hearing and might need to
consider whether or not to suspend the alleged harasser or bully.

Suspension or not?

The first step many employers will take when faced with an allegation of
harassment or bullying is to suspend the alleged perpetrator. Whilst that may
be appropriate in some cases, it is by no means appropriate in all cases.

The employer must consider each case on its own merits and determine whether
or not suspension is an appropriate step to take. Suspension should only be
used where there is a real need to remove the employee from the workplace
temporarily.

A grievance or disciplinary hearing?

A disgruntled employee will often raise allegations of bullying in the form
of a grievance. In their terms and conditions of employment, many public bodies
provide for formal grievance hearings to take place in these circumstances,
with the alleged perpetrator invited to attend. This is a dangerous path to
follow. The grievance hearing is not the appropriate forum for determining
allegations of misconduct against individuals. Such an individual will have
limited rights in relation to the conduct of the hearing, because, since it is
not a disciplinary hearing they will have no right to an appeal.

Despite this lack of rights, the grievance hearing may well establish
whether or not any misconduct has taken place, which could clearly prejudice
any subsequent disciplinary hearing. The proper path to follow is for the
employer to investigate any grievance raised and if satisfied that there is an
issue of misconduct, suspend the grievance procedure before any hearing takes
place or any findings are made in relation to the grievance. They should then
follow a proper disciplinary process with the individual against whom the
allegations have been made.

Allegations, evidence and the impartial hearing

Harassment or bullying cases can be problematic in disclosing to the alleged
perpetrator the nature of the allegations they face. The complainant may not
wish to be identified to the alleged perpetrator and the employer may not wish
to disclose to the alleged perpetrator the exact nature of the allegations
because by so doing he will be identifying the complainant. It is, however,
difficult to see how there can be a procedurally fair dismissal in
circumstances where the employee is unaware of the allegations against him.

It is a fundamental principle of justice that an individual who faces
accusations knows what those accusations are in order that they have a fair
opportunity to answer them. In PACT v Clark 1.3.1999 Employment Appeal Tribunal
705/95, allegations of inappropriate touching made against an employee by two
young women in her care were not disclosed to the employee and the Employment
Appeal Tribunal upheld the tribunal’s finding that this made the dismissal
unfair.

Accordingly, if the employer cannot disclose the allegations to the alleged perpetrator
it will not be possible to carry out a fair disciplinary hearing.

If the employer cannot proceed with a disciplinary hearing can the
allegations be used at a later date to the alleged perpetrator’s detriment? In
the case of TSB Bank plc v Harris 2000 IRLR 157, a number of complaints were
made against an employee who worked for the bank. Only two of those complaints
were ever disclosed to her. The employee was seeking to move to a new job and
asked for a reference. However, the reference mentioned complaints made against
her of which she was unaware. As a result, she was not offered the new job and
then resigned from her existing job claiming constructive dismissal against her
employers.

Her claim was successful. It was held that the employers were in fundamental
breach of the implied terms of trust and confidence by revealing in a reference
to a prospective employer, complaints of which the employee was unaware. In
that case the allegations were later used in the context of a reference. However,
it is likely that if the allegations are used internally, say to block a
promotion, in circumstances where they have never been put to the employee,
then that may also give the employee valid grounds to later resign and claim
constructive dismissal.

It is important that employees are always made aware of any allegations if
disciplinary action is to be taken against them or any other action is to be
taken which could be deemed as detrimental.

What if the employer is able to specify the allegations but does not wish to
disclose the identity of the complainants who have provided the allegations?

The alleged perpetrator will inevitably argue that the identity of the
witnesses is crucial, as it could be that certain individuals who may be giving
evidence have alternative reasons for wanting the allegations to stick. There
are two separate issues here. Firstly, does the alleged perpetrator have a
right to know who all the witnesses are? Secondly, is there a right to actually
see the witness statements – even if it is with names and identifying remarks
blanked out?

The answer to the first issue is that the alleged perpetrator does not have
a right to know the witness’s identity. However, this is not the end of the
story, since the issue is then whether or not the employer can make use of the
evidence of an anonymous informant. Whether or not evidence from an anonymous
informant can be used depends on the circumstances of each case. The EAT have
laid down guidelines which may help.

– A detailed written statement should be obtained from the anonymous
witness.

– The employer should investigate further and seek to corroborate what is in
the statement.

– Tactful enquiries should be made into the background of the informant.

– The employer must decide, having carried out the steps above, whether or
not to proceed on the basis of the evidence of the informant.

– If the case does proceed, the manager responsible for the hearing should
separately interview the informant.

– The informant’s written statement should be provided to the employee if
possible.

– If the employee raises issues to put to the informant, an adjournment may
be appropriate.

– Full notes should be kept of the proceedings.

Whilst each case has to be considered on its own merits, it would be difficult
to prove allegations of misconduct in circumstances where the only evidence was
uncorroborated testimony from a witness who may not be willing to be
identified.

If there are witness statements, these should be disclosed to the employee
against whom the allegations have been made. If the actual statements cannot be
disclosed then at the very least the employer must make the employee aware of
the content of the statements.

Another area of concern in bullying and harassment cases concerns the
hearing. Does the alleged perpetrator have a right to request the presence of
the complainer at the hearing itself to cross-examine that person? The
disciplinary procedure may provide that the employee has such a right, in which
case the employer will be bound to comply with the terms of the procedure.

Where the disciplinary procedure is silent, then the employee has no
absolute right to cross-examine witnesses. There will, however, be exceptional
cases and employment tribunals have held in the past that a failure to allow
cross-examination in situations where, for example, there is a crucial issue of
fact upon which a decision to dismiss may turn, renders the dismissal unfair.

The employer must therefore consider any requests by the employee to
cross-examine the complainant carefully before determining whether or not it is
appropriate in the circumstances of that particular case.

Conclusion

Bullying and harassment cases do create difficult issues for employers, but
it is important that employers bear in mind the procedural safeguards to which
those accused of such acts are entitled. Failure to follow a proper procedure
may leave employers exposed to potentially costly claims for unfair dismissal.
n

Stuart Neilson is a partner in the employment unit of McGrigor Donald

Actions employers need to take

Employers need to be aware of the rights of those accused of harassment or
bullying. In particular

– Employers should not automatically suspend employees who face allegations
of bullying or harassment. Suspension should take place only where it is both
appropriate and necessary.

– Where allegations of bullying and harassment are made in the context of a
grievance procedure, employers need to be prepared to suspend that procedure
and move to a disciplinary procedure when it is considered likely that there
may be some disciplinary action arising out of the allegations.

– Employers should not take disciplinary action against employees or subject
them to any other detriment in respect of allegations that have not been
formally put to the employee.

– If employers consider it is necessary to rely upon the evidence of
anonymous witnesses then they should only do so having followed the guidelines
set down by the EAT.

– As a matter of course the content of witness statements should be
disclosed to the employee, unless there are exceptional reasons for not doing
so.

– Employers need to be aware that in exceptional cases it may be necessary
to allow the employee to cross-examine witnesses at disciplinary hearings.

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