Comments are closed. Rules of misconductOn 1 May 2001 in Personnel Today Previous Article Next Article There has been considerable emphasis recently on the rights of employees notto be harassed or bullied in the workplace. But, says Stuart Neilson, the alleged perpetrators of bullying haverights too and in dealing with the allegations of bullying and harassmentemployers must not lose sight of those rightsRecently there has been an upsurge in the number of employees who claim thatthey have been bullied or harassed at work. A number of trade unions are activelypursuing campaigns aimed at raising awareness of bullying and harassment in theworkplace. As a result, there is increasing pressure on employers to be seen toact quickly and decisively with those who are alleged to have carried out suchacts. But don’t bullies have rights too? The answer, of course, is that yesthey do and that employers will overlook these rights at their peril. The rushto judgement of an alleged bully may seem like a good idea at the time but itis something employers may have cause to regret as they wait for the employmenttribunal to come around. When dealing with any misconduct case, including allegations of harassmentor bullying, employers must bear in mind the fundamental rights of theemployees who are facing the misconduct allegations. Three of the keyprinciples. – 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 withthe alleged harasser or bully. It may need to determine whether there isgrounds for a grievance hearing or disciplinary hearing and might need toconsider 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 ofharassment or bullying is to suspend the alleged perpetrator. Whilst that maybe 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 whetheror not suspension is an appropriate step to take. Suspension should only beused where there is a real need to remove the employee from the workplacetemporarily. A grievance or disciplinary hearing? A disgruntled employee will often raise allegations of bullying in the formof a grievance. In their terms and conditions of employment, many public bodiesprovide for formal grievance hearings to take place in these circumstances,with the alleged perpetrator invited to attend. This is a dangerous path tofollow. The grievance hearing is not the appropriate forum for determiningallegations of misconduct against individuals. Such an individual will havelimited rights in relation to the conduct of the hearing, because, since it isnot a disciplinary hearing they will have no right to an appeal. Despite this lack of rights, the grievance hearing may well establishwhether or not any misconduct has taken place, which could clearly prejudiceany subsequent disciplinary hearing. The proper path to follow is for theemployer to investigate any grievance raised and if satisfied that there is anissue of misconduct, suspend the grievance procedure before any hearing takesplace or any findings are made in relation to the grievance. They should thenfollow a proper disciplinary process with the individual against whom theallegations have been made. Allegations, evidence and the impartial hearing Harassment or bullying cases can be problematic in disclosing to the allegedperpetrator the nature of the allegations they face. The complainant may notwish to be identified to the alleged perpetrator and the employer may not wishto disclose to the alleged perpetrator the exact nature of the allegationsbecause by so doing he will be identifying the complainant. It is, however,difficult to see how there can be a procedurally fair dismissal incircumstances where the employee is unaware of the allegations against him. It is a fundamental principle of justice that an individual who facesaccusations knows what those accusations are in order that they have a fairopportunity to answer them. In PACT v Clark 1.3.1999 Employment Appeal Tribunal705/95, allegations of inappropriate touching made against an employee by twoyoung women in her care were not disclosed to the employee and the EmploymentAppeal Tribunal upheld the tribunal’s finding that this made the dismissalunfair. Accordingly, if the employer cannot disclose the allegations to the alleged perpetratorit will not be possible to carry out a fair disciplinary hearing. If the employer cannot proceed with a disciplinary hearing can theallegations be used at a later date to the alleged perpetrator’s detriment? Inthe case of TSB Bank plc v Harris 2000 IRLR 157, a number of complaints weremade against an employee who worked for the bank. Only two of those complaintswere ever disclosed to her. The employee was seeking to move to a new job andasked for a reference. However, the reference mentioned complaints made againsther of which she was unaware. As a result, she was not offered the new job andthen resigned from her existing job claiming constructive dismissal against heremployers. Her claim was successful. It was held that the employers were in fundamentalbreach of the implied terms of trust and confidence by revealing in a referenceto a prospective employer, complaints of which the employee was unaware. Inthat 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 apromotion, in circumstances where they have never been put to the employee,then that may also give the employee valid grounds to later resign and claimconstructive dismissal. It is important that employees are always made aware of any allegations ifdisciplinary action is to be taken against them or any other action is to betaken which could be deemed as detrimental. What if the employer is able to specify the allegations but does not wish todisclose the identity of the complainants who have provided the allegations? The alleged perpetrator will inevitably argue that the identity of thewitnesses is crucial, as it could be that certain individuals who may be givingevidence have alternative reasons for wanting the allegations to stick. Thereare two separate issues here. Firstly, does the alleged perpetrator have aright to know who all the witnesses are? Secondly, is there a right to actuallysee the witness statements – even if it is with names and identifying remarksblanked out? The answer to the first issue is that the alleged perpetrator does not havea right to know the witness’s identity. However, this is not the end of thestory, since the issue is then whether or not the employer can make use of theevidence of an anonymous informant. Whether or not evidence from an anonymousinformant can be used depends on the circumstances of each case. The EAT havelaid down guidelines which may help. – A detailed written statement should be obtained from the anonymouswitness. – The employer should investigate further and seek to corroborate what is inthe statement. – Tactful enquiries should be made into the background of the informant. – The employer must decide, having carried out the steps above, whether ornot to proceed on the basis of the evidence of the informant. – If the case does proceed, the manager responsible for the hearing shouldseparately interview the informant. – The informant’s written statement should be provided to the employee ifpossible. – If the employee raises issues to put to the informant, an adjournment maybe appropriate. – Full notes should be kept of the proceedings. Whilst each case has to be considered on its own merits, it would be difficultto prove allegations of misconduct in circumstances where the only evidence wasuncorroborated testimony from a witness who may not be willing to beidentified. If there are witness statements, these should be disclosed to the employeeagainst whom the allegations have been made. If the actual statements cannot bedisclosed then at the very least the employer must make the employee aware ofthe content of the statements. Another area of concern in bullying and harassment cases concerns thehearing. Does the alleged perpetrator have a right to request the presence ofthe complainer at the hearing itself to cross-examine that person? Thedisciplinary procedure may provide that the employee has such a right, in whichcase the employer will be bound to comply with the terms of the procedure. Where the disciplinary procedure is silent, then the employee has noabsolute right to cross-examine witnesses. There will, however, be exceptionalcases and employment tribunals have held in the past that a failure to allowcross-examination in situations where, for example, there is a crucial issue offact upon which a decision to dismiss may turn, renders the dismissal unfair. The employer must therefore consider any requests by the employee tocross-examine the complainant carefully before determining whether or not it isappropriate in the circumstances of that particular case. Conclusion Bullying and harassment cases do create difficult issues for employers, butit is important that employers bear in mind the procedural safeguards to whichthose accused of such acts are entitled. Failure to follow a proper proceduremay 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 takeEmployers need to be aware of the rights of those accused of harassment orbullying. In particular– Employers should not automatically suspend employees who face allegationsof bullying or harassment. Suspension should take place only where it is bothappropriate and necessary.– Where allegations of bullying and harassment are made in the context of agrievance procedure, employers need to be prepared to suspend that procedureand move to a disciplinary procedure when it is considered likely that theremay be some disciplinary action arising out of the allegations.– Employers should not take disciplinary action against employees or subjectthem to any other detriment in respect of allegations that have not beenformally put to the employee.– If employers consider it is necessary to rely upon the evidence ofanonymous witnesses then they should only do so having followed the guidelinesset down by the EAT. – As a matter of course the content of witness statements should bedisclosed to the employee, unless there are exceptional reasons for not doingso.– Employers need to be aware that in exceptional cases it may be necessaryto allow the employee to cross-examine witnesses at disciplinary hearings. 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