Investigating Employees: Don't forget to protect the accused employee

Employers often get into trouble when required to undertake internal investigations.

Such investigations often are necessary when one employee complains about another and particularly where that complaint concerns protected characteristics under the Equality Act 2010, such as sex, race etc.

In such cases, whilst it is an internal process, the actions taken are often scrutinised by lawyers and Employment Tribunal Judges and the consequences of getting it wrong can mean the difference between a win or loss at the Tribunal.

We are also all very much aware of the need to step in to protect the seemingly more vulnerable employees straight away, often influenced by current events and media stories of large pay outs for employees who have been discriminated against and harassed by other employees.  

That can all create an over focusing on the “victim”. It is common for employers to create claims by the accused employee too as they also have rights which can be overlooked and some accusations can cause irretrievable reputational damage, even when the investigation clears the accused employee of wrongdoing. This can all result in career-ending damage.

In such cases, an employer may find themselves “on the hook” for claims from the accused person if they have not acted proportionately and balanced the needs of both employees involved in the dispute.

Here are the common pitfalls and how to address them: -

1. Suspension on full pay:

• A knee-jerk reaction by a lot of employers, suspension may be termed to be a “neutral” act, but in fact it often causes the “no smoke without fire” perception and damage which may be impossible for the accused employee to overcome, even if the investigation clears them. What often happens is that a manager is suspended, and all the employees in the department are called in and asked if they have experienced or seen inappropriate conduct from that person. This results in much speculation, and is often impossible to come back from for the employee in question, potentially creating fundamental breaches of contract too.  
• Suspension should be a last resort and only imposed where less draconian measures cannot protect the accuser. It should not be automatically the person accused who is suspended – sometimes it may be appropriate to suspend both, or to suspend the alleged victim whilst the investigation continues. Suspending the victim can protect the identity of the accused employee, and can be a reasonable step to take. Sometimes a simple change of reporting lines and/or location can resolve the issue without the need for full suspension.
• If suspension is ordered, a clear “cover story” should be agreed as to why the employee is suddenly not at work – “personal reasons” are often used as a cover all here. The accuser should be instructed to keep matters confidential while it is investigated.
• If you are going to suspend, you need clear, contemporaneous notes showing how you came to that conclusion, what other solutions you have considered and why they were not appropriate.

2. Suspension for too long:

• Don’t let suspension continue for longer than is necessary, if it is allowed to continue for longer than necessary, the same damage can be done.
• Does the suspension really need to last throughout the investigation or has the reason for it been removed earlier in the process?
• Justify suspension from the outset - clear reviews noted on the file, with clear objective reasons, should be made regularly and after key points in the process.

3. Discriminatory assumptions

• It is vital to avoid discriminating against the accused employee when going through this process to avoid claims being made.
• In the case of a harassment claim made by a younger woman against an older more senior male, is there an assumption of guilt made early on? Do views formed early on taint the process? Would a woman accused of harassment by a younger woman be given the same treatment as being given to the male employee? Training for those involved in investigations, and having a clear overview of not only the current investigation, but general practice and any analogous incidents, is vital to avoid creating a claim.

4. Duty of Care owed to all parties

• It is tempting to see this as being overwhelmingly in favour of the employee bringing the complaint, especially one of, say, bullying or harassment. However, being accused of bullying or harassment is very stressful for employees, and employers need to remember there is a duty to both sides.
• Welfare checks on an employee undergoing the process should be done equally, and support offered on both sides.
• Failure to do so would bring us back to the discrimination angle above.

5. Process must at all times be carried out with a view to both employees remaining at work

• This is where employers often fall down. Throughout the process, you must ensure that the outcome is not pre-judged by making it impossible for the accused employee to return to work and making the position untenable.
• Investigations should only give such information as is needed to obtain evidence, and must be done confidentially.
• Only necessary employees should be spoken to, and probably only after evidence that does not involve disclosing information has been assessed.
• Is there a way to find out the information without revealing confidential details? If so, it should be used.
• Do employees need to know that a complaint has been raised to provide information? If not, then this should not be disclosed.
• There is a balancing act to be carried out here, and where evidence is found during the process which would independently support concerns, it may be appropriate to widen the investigation and reveal more information which may encourage others to speak up, but the employer must be reasonable and proportionate at all times.
• As far as possible, it should be possible for both parties to remain at work following the investigation, and failing to do this can result in the entire process being unfair.

6. Reasonable time to investigate

• It is vital that the investigation proceeds with due speed, especially when one party is suspended, but even if not. Having an investigation hanging over you is very stressful for both parties.
• A long delay can result in claims of constructive unfair dismissal through loss of trust and confidence from either, or indeed both, parties and can contribute to reputational damage for the party being investigated too.
• The longer the investigation goes on, the less likely it is that the accused employee will be able to continue working as before, and the accuser may lose confidence in the process as well.

As an employer, you owe a duty of care to all staff– so that includes a duty to the complainant to handle their concerns properly as well as a duty to the individual who is the subject of the complaint. You must be careful not to breach contractual obligations and in some cases the ACAS codes too as to do so may give rise to claims of constructive dismissal and increased compensation, so do take care to get it right.