This time the experts, Esther Smith and Martin Brewer give their advice on what to do about an employee bad mouthing the company at social events in front of clients.

The question: Accusations – how do we handle bad mouthing of the company?

I’m investigating an accusation by one of our senior staff against a slightly more junior colleague. Apparently, at a social event, the junior colleague made a series of disparaging and damaging remarks about our company in the presence of a client. This is obviously a serious allegation as the remarks can negatively impact our relationship with our client and ‘dirty laundry’ should not be washed in public.

The accuser was at this social event and was pretty annoyed with what was allegedly said by the accused. My concern is that the accused may bring along a colleague who was also at the social event and will have witnessed what was said. Does that person have any right to address the hearing or back up the accused? It’s the second time that the accused is alleged to have acted in such a way and in the first instance, we dealt with it informally.
Also, can you confirm that we have to name the accuser when we supply witness statements to the accused?

Legal advice:
 

Martin Brewer, partner, Mills & Reeve
 

There are two separate issues here so let’s see if we can tease them out.

First, you would have to have a very compelling reason not to name the accuser since it may be material to the defence. The accused may argue that the accusation is either made up or perhaps exaggerated and that the accuser has an axe to grind which explains that. It is reasonable to allow an accused to know the accuser unless the accuser genuinely fears reprisal for example.

Second, the accused can be accompanied to the hearing by a work colleague.  The role is to ‘put the worker’s case, sum up that case, respond on the worker’s behalf to any view expressed at the hearing’. What the so-called companion cannot do is answer questions on behalf of the accused (see Employment Relations Act 1999). The only real limitation is contained in the ACAS Code of Practice on Disciplinary Procedures which says that "it would not normally be reasonable for workers to insist on being accompanied by a companion whose presence would prejudice the hearing…". 

So it is permissible for the companion to also be a witness. If they are a witness for the accuser then asking them to be a companion for the accused would potentially put them in an awkward position but not an impossible one because all they have to do is be a companion, they do not have to participate in the hearing in that role.

So in your shoes I would carry out an investigation, establish who witnessed the events, call them as witnesses and if one is also asked to be the accused’s companion he or she can decide if they want to undertake that role. If they do then I see no fundamental difficulty with that.

Martin Brewer can be contacted at martin.brewer@mills-reeve.com. For further information, please visit Mills & Reeve.

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Esther Smith, partner, Thomas Eggar
 

In answer to your first question, an employee has a statutory right to be accompanied at a disciplinary hearing by either a fellow employee or a trade union representative. Therefore if the employee requests that the other witness attend as his representative, and that witness is happy to attend, it is very difficult for the company to object to this. However, I have no issue in indicating to the employee that you think that their choice of representative is inappropriate in the circumstances and ask them to reconsider. However, if they want to bring that person they can.

The one thing that I would say is that if the company’s investigation into the allegations is full and thorough I would expect the witness to have been interviewed already and their account of the circumstances would already form part of the overall process.

As regards your second enquiry, it would be very rare to be in a position to justify the withholding of the name of a witness to the allegations, even if it is the person who brought them to the company’s attention.

The starting principle is that you should always provide the employee accused with all the information that is available to the employer, so that they can properly respond to the allegations against them.  Only if there is a genuine fear of reprisal or some other overriding justification could you justify protecting the anonymity of the witness.

Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.