Duty of care and the employee accused of wrongdoing

All HR professionals are familiar with the stress and anxiety associated with a grievance or disciplinary process. Ashleigh Webber examines the employer’s duty of care for the dismissed employee or one who stands accused of wrongdoing.

On 3 November 2017 Carl Sargeant was removed from his cabinet position in the Welsh Assembly following allegations, which he denied, of inappropriate behaviour towards women. Four days later he was dead.

An inquest earlier this month ruled his death a suicide. The then first minister of Wales, Carwyn Jones, was said to have dismissed Sargeant during a 10-minute meeting and two hours later he was suspended from the Labour party.

I think what can be missing sometimes in employers’ individual dispute processes and investigation procedures is that element of compassion and the safeguarding of people’s health” – Rachel Suff, CIPD

Sargeant had been diagnosed with depression in 2012, but few knew he struggled with his mental health.

His wife told the inquest he felt “destroyed” after finding out he was suspended from the party, and coroner John Gittins said there was no formal support system for him and other sacked ministers “despite the probability that the first minister knew of Mr Sargeant’s vulnerability in relation to his mental health”.

While, as an AM, Sargeant was not employed by the Labour party or the Welsh government, the case poses a moral dilemma for employers. Although the relationship between an employee and an organisation comes to an end when a person is dismissed, there is an ethical argument around whether the employer’s duty of care extends beyond this point – especially if there has been a distressing investigation.

“This is a complex question legally, and so an example where we have to consider the ethical position as to how far the duty of care extends,” says Philippa Foster Back, director at the Institute of Business Ethics (IBE).

“Hardliners might say that once a contract has ended, so has the duty of care, but ethically sensitive organisations will feel some sense of responsibility to all their present and former employees.”

The legal position is that an employer must take “reasonable care” of the physical and mental health of the people it employs and it has no obligations to protect former staff. However, an employer does not need to do “everything in its power” to prevent harm, says James Froud, head of employment at law firm McCarthy Denning.

This duty of care applies in all circumstances. In a particularly shocking case in France, the verdict of which is expected in December, senior managers at Orange, formerly France Télécom, have been accused of “moral harassment”, which led to 19 suicides among employees.

The French court was told the seven executives, who are awaiting the outcome of the trial, created conditions that they knew would push some staff into despair and depression in order to achieve headcount reductions and cut costs.

Employers need to take steps to safeguard staff health and wellbeing, even when person has been accused of wrongdoing, explains Froud.

“Whatever the merits or veracity of the victim’s claims, it should be recognised that the alleged perpetrator is also an employee with all associated rights. Whilst the complaints must be investigated with rigour, it should not be forgotten that the accused is human and will inevitably suffer enormous stress and anxiety during a disciplinary process,” he says.

Before the decision is made

Rachel Suff, senior policy adviser at the CIPD, says employers need to be mindful of how an employee might be affected by dismissal or suspension before the decision is made.

In the case of a dismissal, explains Suff, “legally, the duty of care isn’t there anymore because their employment contract has come to an end, but that doesn’t mean that morally, if concerns are there and you know somebody is fragile, you don’t need to think about how they are doing.

“While you still have a relationship, you should check if they have anybody around them at home and a support network. We spend a third of our life at work, so dismissing them could potentially be cutting off a lot of their support network. You need to start that conversation and make sure support is in place well before they are dismissed.”

Sargeant’s family say few knew he struggled with his mental health, so it may be the case that this was overlooked when the Labour party and the former first minister considered their response to the allegations. But Suff suggests employers should ensure mental wellbeing forms an integral part of their disciplinary and investigation procedures by default.

“I think what can be missing sometimes in employers’ individual dispute processes and investigation procedures is that element of compassion and the safeguarding of people’s health. They could be totally compliant with the law, Acas guidance and good practice, and the decision could well be the right thing for the organisation to do, but it’s still likely to have a devastating impact for that individual.”

She suggests offering counselling, access to occupational health or use of an employee assistance programme (EAP) at every step of the process, regardless of how the individual seems to be coping with it.

If a person is suspended from their role, they still remain employed. So organisations should keep in touch with them and ask about their health and wellbeing.

There is also an opportunity for those involved in the investigation, such as HR or line managers, to develop their skills in this area so they are aware of the potential effects their decisions have on their employees’ health.

“Employers do have an ethical responsibility to recognise where an employee under investigation may be mentally vulnerable,” says the IBE’s Philippa Foster Back. “Mental health issues are no excuse for bad behaviour, but perhaps this is where counselling skills needs to be part of the training of investigation teams. Then they can both identify the mentally vulnerable, and ensure they get the right support so that these kinds of tragedies are averted.”

Suff says investigations should not be drawn out, but should remain comprehensive. “I know organisations that have taken months to investigate and that is not acceptable. Being left in limbo is awful and the impact on you psychologically can be really bad.”

Robust ‘person-centric’ investigations

Taking a “person-centric” approach to conducting a misconduct investigation does not mean that the process and outcome are any less robust. Employers can still take firm action if it is warranted and proportionate, says Suff.

Neither would this approach send the wrong message about the seriousness of the allegations. While human nature might mean employers focus more on the wellbeing of the alleged victim, the accused should not be ignored, says Froud. “It is irrelevant that the individual may have brought these matters on themselves, since the opposite may also be true. Individuals who are subject to disciplinary investigations should be treated in a fair and even-handed manner.”

Organisations should maintain a separate line of communication with the accused employee to prevent them from feeling isolated or abandoned, to give them reassurance that their own views will be heard, that confidentiality will be maintained, and that the number of people involved will be kept to a minimum, he adds. The same also applies to the alleged victim.

“This is also good practice, as it can serve as a check on the individual’s general wellbeing, which may be crucial in detecting signs of deteriorating mental health, which may in turn allow appropriate steps to be taken to avoid the situation becoming worse,” he adds, especially as statistics show many people are still hesitant to talk about their mental health.

Staff suicide

According to the Office for National Statistics, there were almost 6,000 suicides across the UK in 2017, and around three quarters of these were men.

Employers do have an ethical responsibility to recognise where an employee under investigation may be mentally vulnerable” – Philippa Foster Back, Institute of Business Ethics

Carl Sargeant’s case is a tragic but rare example of the role employers have in ensuring staff are supporting through difficult periods. There is no evidence to suggest his dismissal or the investigations into the allegations were the sole reasons behind Sargeant’s suicide, but if a worker or ex-worker does take their own life employers should be open with their colleagues about what has happened, advises Emma Mamo, head of workplace wellbeing at mental health charity Mind.

“It’s important that HR teams talk to their teams openly and with compassion. Staff should be offered the opportunity to receive counselling, to debrief, and to have their feelings and any concerns heard,” she says.

“It may be helpful to highlight the support structures that are available to staff such as occupational health referrals and employee assistance programmes. Also the HR team themselves should be given the support they need to cope with such a distressing situation.”

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Ashleigh Webber

About Ashleigh Webber

Ashleigh has been a business journalist since 2012. She covers HR, recruitment and employment issues, as well as occupational health and wellbeing.
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