The question
What is an appropriate disciplinary charge for an incident that has led to a criminal investigation outside of work, allegedly involving another member of staff following a work event?
Here is an outline of the situation: Following a corporate event, a group of people went back to an employee’s home and continued drinking until the early hours of the morning. Two members of staff woke up in a compromising position and there is now an allegation of rape from one employee against another.
This is now being investigated by the police but no charges have been brought as yet. The person accused of rape has been suspended from work as a precaution for a couple of months, but has been advised that it could be months before a charge comes to light.
In the meantime, the company deals with a very vulnerable group of people and are not in a position to pay a suspended individual indefinitely. So my questions are:
- What kind of disciplinary charge would be applicable in a situation like this? What should we put in the invite letter to a disciplinary hearing?
- Where does the boundary lie between investigating events that occur outside of work but affect members of staff and it not being an employment-related issue (regardless of whether or not a criminal investigation is pending)?
- How can an employer be expected to make a decision based on reasonable belief (Burchell vs BHS) if the police haven’t been able to make a decision on whether to charge the individual or not at this stage?
I’d very much appreciate any help or advice in relation to this situation.
The legal verdict
Esther Smith, partner at Thomas Eggar
Sadly this is a situation that I have had to deal with before. There is an issue in progressing disciplinary action against the individual accused of rape because they have not committed an act of misconduct at work that would justify disciplinary action.
Being accused of such a thing (and, of course, it remains an allegation rather than a conviction) by a colleague outside of the workplace does not give rise to grounds for a disciplinary hearing.
That said, I think that you were right to suspend the employee concerned while matters progress with the police as clearly the two employees cannot work together. I also fail to see how they will ever work together going forward, irrespective of what the outcome of the police investigation is, particularly if the workplace is a small one.
Therefore, I do think that you have the potential to use the “some other substantial reason” route to justify a dismissal in this situation. However, you ought to take advice on this and the risks associated with it. You should also consider whether to dismiss both of them rather than just the one that is accused of the rape.
Such a dismissal would not indicate that you, as the employer, had a reasonable belief that the allegation of rape was justified, or indeed if you dismissed the accuser too, that you had a reasonable belief that the allegation was false.
It simply indicates that the circumstances before you were such that you were justified in terminating their employment. However, it is certainly a situation to take advice on.
Esther Smith is a partner in Thomas Eggar‘s Employment Law Unit.
Adam Partington, a solicitor at Speechly Bircham LLP
Even though the police have not been able to make a decision on whether to charge the individual with a criminal offence, from an employment law perspective, it is open to you to carry out an investigation and, if appropriate, take disciplinary proceedings.
On a practical level, it may well be difficult to obtain evidence, particularly in a sensitive case such as this. Moreover, the alleged perpetrator will probably be reluctant to say anything for fear of jeopardising any potential criminal trial where the sanctions would be much more severe.
However, you may be able to find sufficient information to enable you to draw your own conclusions and make a decision. But for this process to be fair, it is vital that you do not pre-judge the outcome of either the investigation or any subsequent disciplinary process.
Even though the act was committed outside of work, it did involve a work colleague and it could, indeed almost certainly would, have an adverse effect on the business in terms of publicity and public perception, which would justify further investigation.
But you will need to determine the range of appropriate disciplinary charges based on the outcome of your investigation.
As you suggest, the ‘Burchell’ test provides guidance on what is required for a misconduct dismissal to be fair. In short, at the time of the dismissal, an employer needs to have a reasonable belief in the employee’s guilt, based on a reasonable investigation.
The level of investigation needs to be within the "band of reasonable responses", according to the case of Sainsbury’s Supermarkets Ltd v Hitt. The test applies whether or not the police are involved.
But you would not necessarily be expected to wait until the criminal process runs its course. That could take many months, during which time the individual would almost certainly be suspended on full pay, and you could properly argue that such a situation would not be reasonable for the business.
Reasonable responses
You would, of course, have to give the individual every opportunity to deal with the allegations, however. It would then be up to him whether and, if so to what extent, he chooses to do so.
Where the potential consequences of the individual being found guilty are very serious, for example ending the individual’s career, it would require a "careful and conscientious" investigation, which should be balanced.
This means that the investigation should seek evidence that may point towards both the employee’s innocence as well as his guilt, which should be put before the disciplinary panel.
In the scenario outlined, to satisfy these tests, it is likely that you will need to investigate events even if they have occurred outside the workplace if they are relevant.
If you end up dismissing the individual, in order to defend an unfair dismissal claim successfully, you will need to show an employment tribunal that at the time of the decision, you formed a reasonable belief of their guilt on reasonable grounds, and had carried out as much of an investigation as was reasonable under the circumstances.
The tribunal would then have to consider whether you acted within the band of reasonable responses in treating the misconduct as a sufficient reason for dismissal. You would also need to show that you have carried out a fair process, which included complying with the ACAS Code of Practice.
Among other things, this entails making individuals aware of the case against them (and the possible consequences) in order to give them the opportunity to state their side of things. They must also be provided with a right of appeal. So be careful not to fall foul of your own disciplinary procedures.
An alternative route could be to take action against the individual for “some other substantial reason” on the basis that his involvement, whether true or not, could bring the business into disrepute – although the viability of this option will be fact-sensitive.
But this is an area in which the particular circumstances of the case will be critical to how you proceed so you should take tailored legal advice.
Adam Partington is a solicitor at Speechly Bircham LLP.
