An employer has received a number of complaints against an employee from one of their customers, yet has questioned the impartiality of the complaints. Martin Brewer and Esther Smith advise on whether this should go to a disciplinary hearing.
The question:
The company received a complaint from one of our service users (a recreational club) in relation to an employee whose services they used regularly as a coach. In January we were provided with a number of complaints against the employee, some ranging back to 2007 and the most recent dating back to December 2008. We have held a number of investigation meetings with every person mentioned in each complaint and every person the employee has suggested as witnesses.
All of the complainants are committee members of this club who are all backing each other with identical stories. All employee witnesses are friends of the employee and parents of children who attend our premises.
The crux of the situation is that the complaints have only been witnessed by committee members and each situation could be viewed as acceptable in terms of the employee’s explanation, but unacceptable if the word of the committee members is taken as factual. My problem is that no-one interviewed is impartial and I am struggling to get definitive proof to support either camp. Based on probability, as the committee members are backing each other, their stories match and it could be argued that they have witnesses albeit from the same committee.
My biggest concerns are that a) the length of time it has taken them to report some of the issues, and the fact that they allowed the alleged actions to continue and didn’t once raise them formally or informally with the employee, and b) the potential lack of impartiality.
Any suggestions on what to base a decision on? I’m struggling to decide whether this needs to go to a disciplinary hearing or not as it is impossible to determine which account of events is correct.
Legal advice:
Martin Brewer, partner, Mills & Reeve
It’s difficult to answer a question like this without a lot more detail. But there are one or two points which may assist you to reach a conclusion. First you do not need ‘definitive proof’. You need to establish what the relevant evidence is and from that make a decision, as you suggest, on the ‘balance of probabilities’ or, to put it another way, is it more likely than not these things occurred.
Second, the fact that witnesses know each other does not necessarily indicate bias. The simple point here is that there’s a difference between one person ‘backing’ another and two people telling the same story because they have both witnessed it (which would inevitably mean their statements will match). Matching statements do not necessarily indicate a conspiracy which is what you seem concerned about.
Finally and connected to my second point, and indeed crucial to any such investigation, you must assess the credibility of the witnesses in order to determine who to believe where you simply have conflicting evidence.
So how do you decide? You will have collected a number of witness statements (including from the employee). You may also have other evidence (documents for example). You need to consider each statement critically, consider any other evidence and ask a number of questions:
- Is this a first-hand account or something less reliable?
- Does the witness have any reason to be dishonest?
- Is the account internally consistent?
- Is the account corroborated by other witness evidence?
- Is the account corroborated by any other surrounding evidence?
I agree that you must consider why it took so long for complaints to be made. The simple solution to that is ask the witnesses why they failed to complain sooner (although do bear in mind that individual complaints may be minor but a number taken together may indicate a bigger problem, and people may not have thought to complain until they realised there was a bigger issue). It will help you to write down, almost in a list format, evidence supporting the allegations and evidence against. I suspect that once you go through this exercise you will have a clearer picture of where the balance of probabilities lies but I stress that you must put out of your mind any concerns about ‘definitive’ truth.
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
This is a tricky situation! I think that if you feel that the investigation gives rise to questions that need to be answered, then it probably should go to a disciplinary hearing, so that an independent person who has not so far been involved can look at the information collated by the investigation and listen to the employee’s explanation. It is important to remember that an employer does not need to have categoric proof of an employee’s guilt in order to impose a disciplinary sanction but has to act on a reasonable belief, based on a thorough investigation. If there are reasonable grounds for concluding that the statements from other employees are contrived or untrue then this could tip the balance in determining whether a disciplinary sanction should be imposed.
I am also concerned about the timing, both in terms of the fact that these complaints have not been reported before, and also as it appears that you were notified of the complaints in January and are still investigating in June! This in itself, unless there is good objective reasons for the delay, could mean that proceeding with a disciplinary hearing is risky due to the undue delay. In terms of the delay in the complaints being raised, this might add to the evidence indicating that the complaints, and therefore the witness evidence supporting them, are somehow contrived or exaggerated.
Sorry not to give a categoric answer, but without looking at the investigation material and fully understanding the relationships between the various parties it is difficult to say whether disciplinary action, or indeed sanction, is appropriate.
Esther Smith is a partner in Thomas Eggar’s Employment Law Unit. For further information, please visit Thomas Eggar.
