What’s the answer? Innocent until proven guilty?

Annie Hayes

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What’s the answer? Innocent until proven guilty?

By Annie Hayes

Keith Stuart gets advice this week on how to manage relations between an employee who has admitted liability for an accident causing the deaths of three people and the witnesses in the office who refuse to work with him.

The question:
We have an employee who was involved in an accident outside of work, to which he’s admitted liability and which resulted in the death of three people. Two other members of staff are acting as witnesses for the prosecution, their evidence being the most damning.

There are no bail conditions regarding contact between the employee accused and the witnesses, so the option of dismissal in order to comply with a legal requirement isn’t open to us.

The employee wants to come back to work but has admitted that it’s going to be difficult working with the witnesses. A number of employees, including the witnesses, have expressed a preference not to work with him. Added to this, he is already on a warning for threatening behaviour.

As I see it dismissal would be risky, relocation into another area of the business is a consideration (although contact with the witnesses would still happen), suspension on full pay until the court case another. Any other ideas? Relevant case law? Or has anyone dealt with something similar?

Keith Stuart

The answers:
Nicholas Snowden, senior solicitor at Clarkslegal LLP

Unfortunately, there is no magic solution to this thorny problem. It is clear from your question that you have the main options in mind. None of the possible solutions are ideal. However, depending on the level of contact which would still occur between the employee and the prospective witnesses against him in the criminal trial, redeploying the employee within the organisation, could be the most attractive option. As the employee has admitted that working with the witnesses will be difficult, hopefully redeployment could be achieved with the employee’s consent.

As the witnesses have expressed nothing more than a preference not to work with the employee, hopefully both the witnesses and the employee would appreciate that you are doing the best you can for everyone concerned in the circumstances. You would thereby also be minimising the risk of an unfair dismissal claim. Of course, a constructive dismissal claim is always possible if the redeployment is badly handled, but at least this would be more difficult for the employee to win, than a straight unfair dismissal claim.

In as far as it indicates a tendency to inappropriate behaviour in the workplace, the existence of a prior warning for threatening behaviour is a concern. To try to avoid any repeat, I would recommend that on his return, it should be made clear to the employee that he must not attempt to talk to the witnesses about the criminal prosecution either during or outside of work time. He should be informed that if he ignores this instruction, it will constitute gross misconduct and he may be dismissed. You should keep a written record that this warning has been given. The witnesses should be separately informed that they are not to raise the issue of the criminal prosecution with the employee.

I agree with you that dismissal in this situation would be risky. In law, you would have to dismiss under the ‘some other substantial reason’ head. This is possible where relationships between employees have completely broken down. However, to have a strong defence, you would have to explore other avenues, such as seeking to patch up the relationship (probably not realistic in this case), or moving one of the employees if this is possible.

If attempts to redeploy the employee fail, for example, because the employee refuses to move, or the contact between the employee and the witnesses is still uncomfortably regular after the redeployment, dismissal may become a safer option.

As regards suspension on full pay until the criminal matter has been dealt with, one disadvantage is that this might provoke a constructive unfair dismissal claim by the employee. The second is that, owing to the delays inherent in criminal proceedings, you could spend a long period paying an employee full pay who is not contributing to your organisation.

Normally, there would be a third disadvantage, which would be that you could not be certain that a custodial sentence would be passed and that you would then have to deal with the issue of the employee’s return to work at that point. However, as the employee in this case has admitted liability and the case sounds very serious, a custodial sentence sounds certain to result and this issue should not trouble you. Nevertheless, I recommend that you explore redeployment.

Nicholas Snowden can be contacted at nsnowden@clarkslegal.com

Stephanie Wootton, employment law expert, Browne Jacobson

Dismissal could be a risky course of action, although the circumstances you describe could give rise to two potentially fair reasons to dismiss – ‘Conduct’ or ‘Some Other Substantial Reason’.

In dismissing an employee for a conduct issue, you must be able to demonstrate that the conduct outside of work is sufficiently closely connected with his or her employment. From the explanation you have given, it is not clear whether or not you could establish this, although the fact that the two of the witnesses were employees suggests a connection.

Case law has determined that employers can be vicariously liable for incidents which occur at a pub after work. Therefore, if the accident occurred, for example, when driving home after a drink with colleagues, there may be a sufficient connection to enable you to take disciplinary action or even dismiss.

If you could link the warning for aggressive behaviour to this conduct (for example, if the accident occurred because your employee has an aggressive nature), then further disciplinary action or dismissal for conduct may be appropriate, provided you observe the statutory disciplinary and dismissal procedures.

Case law also suggests that ‘Some Other Substantial Reason’ can be fair justification for dismissal where, for example, personality clashes between employees cannot be resolved in the workplace.

Depending on the precise reasons for your other employees’ refusal to work with this individual, however, there could be scope to consider their stance as ‘industrial action’ – i.e. refusing to work with him and disrupting your business to put bargaining pressure on you to dismiss him. In those circumstances, you would have to disregard that pressure, and would not be able to rely on that disruption as a reason for dismissing the person involved in the incident.

If your employees’ refusal to work with him does not amount to industrial action, but is due to a genuine resentment of his actions (for example, if the victims were known to the witnesses), then provided you go through the statutory dismissal procedure, this could be considered fair grounds for dismissal. Dismissing him with notice pay will help avoid a claim for wrongful dismissal or for breach of contract for failing to pay notice.

Suspension on full pay is an option, albeit a potentially costly one, depending on how far away the court case is. It may be appropriate for a short time, but if it is over a lengthy period, then other employees may begin to resent this, since the suspension is on full pay. Also, if the suspension is considered inappropriate or too lengthy, it could give rise to a breach of contract claim.

Suspension may be appropriate if you are conducting your own internal investigation, and feel that the employee’s presence in the workplace could hinder or prevent investigation, or that the employee may interfere with evidence or attempt to influence witnesses if allowed to remain in the workplace.

Relocation sounds like a good idea if this will limit the contact with the witnesses. If not possible, you might consider offering a termination package to the employee, and asking him to sign a compromise agreement confirming that he will not pursue any claims against the company.

This is not a risk free solution, however. Be careful in approaching this to avoid a potential claim of constructive dismissal (on the grounds of a breach of mutual trust and confidence). For the agreement to be binding, the individual must obtain independent legal advice – the costs of which an employer would normally contribute towards. This in turn could lead to the employee, better informed of his rights, seeking more compensation that you are willing to offer.

All in all, this is a complex and potentially litigious set of circumstances, which presents various possible courses of action, each with their own risks and advantages. I would suggest you seek more detailed legal counsel before proceeding.

Stephanie can be contacted at: swootton@brownejacobson.com

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HRZone highly recommends that any answers are taken as a starting point for guidance only.

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