Weekly legal dilemma: informing on misconduct

After a teambuilding event at a local hotel, one of our employees confessed that during the networking exercise in the bar in the evening, he witnessed an employee putting something in a colleague’s drink without their knowledge. We have dismissed the perpetrator, but how do we deal with the bystander?

This raises both legal and moral issues. Consider whether there is an express contractual provision that places a duty on the employee to inform their employer they have become aware of misconduct by another employee. In the absence of a relevant express term, an implied contractual duty to inform may arise, but this will not necessarily (or indeed generally) be the case. Identifying the circumstances in which an implied contractual duty to inform exists, will depend on the seniority of the bystander/informant and the seriousness of the misconduct to be disclosed.

As your employee actually disclosed the misconduct, whether or not they are bound by any express or implied obligation is irrelevant. So the question is, do you have grounds upon which you could subject the employee to disciplinary action because he failed to take any action at the time?

Clearly, the conduct of the perpetrator was serious enough to justify dismissal. Equally, it could be argued the lack of action taken by the bystander at the time was just as serious. As a result of the employee’s confession, you could say you have lost all trust and confidence in the employee and take the decision to dismiss him.

While dismissal is rather a draconian sanction, the employee’s failure to take action at the time must be addressed. An employer has a duty to take reasonable care of its employees and is vicariously liable for their actions (or lack of action). A failure to raise awareness and promptly deal with issues of this type risks putting you in breach of your duty of care. The bottom line is that the employee’s failure to take action at the time of the incident cannot be ignored.

It is likely that you could justify some form of disciplinary action but when imposing any sort of sanction, you should be mindful of the difficult decision your employee faced in raising the issue, rather than ignoring it completely.

Gareth Roberts is senior solicitor at DWF

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