While the police have said there is no evidence to suggest a crime has been committed, in many parts of the media, this presenter has already faced a trial and been deemed guilty.

Questions have been asked of the BBC as to when they knew about the allegations and why they did not act sooner. Some commentators have suggested the organisation should have named the presenter to prevent his colleagues being wrongfully accused.

While the desire to protect other staff is admirable, the BBC acted entirely appropriately in keeping the identity of the presenter hidden – and any criticism of the organisation in this respect is entirely misguided.

Confidentiality is of the utmost importance

The importance of keeping the fact of a disciplinary investigation confidential cannot be overstated.

It is of utmost importance, even if the employee is not a household name, that steps are taken by an employer to ensure the reputation of an employee facing a disciplinary accusation is protected while a thorough investigation and fair disciplinary process is carried out.

Failure to take all reasonable steps to prevent disclosure of highly sensitive information, such as that under investigation in a disciplinary case, will undoubtedly be a breach of trust and confidence by an employer who will likely find themselves facing a constructive unfair dismissal claim.

While the desire to protect other staff is admirable, the BBC acted entirely appropriately in keeping the identity of the presenter hidden – and any criticism of the organisation in this respect is entirely misguided

Upholding legal duties

Employers should consider whether fellow employees interviewed as witnesses should not be told the name of the employee being investigated, although often this is not possible.

At the very least, witnesses should be advised (verbally and in writing) not to discuss the investigation with other employees or third parties and should be reminded of their legal duties of confidentiality.

An employer should also instruct witnesses to refrain from discussing evidence among themselves, to avoid potentially influencing each other’s evidence.

If an employer has a genuine belief that a criminal offence has occurred or that an individual is at immediate risk of harm, they should contact the police, but making any public statement about an employee under internal investigation should be avoided.

Confidentiality and care considerations

Confidentiality is also an important consideration if an employer decides it is appropriate to suspend an employee pending a disciplinary hearing. If possible, the wording of an internal statement, and sometimes an external one, should be agreed with that employee as to their absence from work.

Care should be taken not to make any statements that could prejudice the outcome of the investigation or disciplinary, nor suggest an assumption of guilt.

Ideally, any ongoing internal process should not be referred to at all. The employee should also be advised what to say if approached by customers or clients, or staff members, who may not be aware of the investigation and their suspension.

If an employer has a genuine belief that a criminal offence has occurred or that an individual is at immediate risk of harm, they should contact the police, but making any public statement about an employee under internal investigation should be avoided

Suspension is impactful

Suspension should not be a knee-jerk reaction to allegations of gross misconduct.

If workplace relationships have broken down, violence has occurred or been threatened or there is a risk that the employee under investigation might interfere with witnesses or attempt to destroy evidence, suspension may well be justified.

Suspending without proper cause and without first considering alternatives, may also amount to a breach of trust and confidence.

It is crucial not to underestimate the impact a suspension might have on an employee’s mental health and wellbeing. Employers have a duty to support a suspended employee and it is not enough to simply tout the oft-used phrase ‘suspension is a neutral act’.

Providing the right support

It should be made clear to the employee that no decisions have been made, nor will they be made until that employee has had the chance to put forward their side of the story and regular contact with the suspended employee should be maintained.

Suspensions should only last for as long as is strictly necessary and suspended employees should be pointed towards sources of mental health support.

If you enjoyed this, read: How HR can avoid a Schofield Saga in five practical steps

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