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Expert Comment: Disciplinary Action

Gavel Tuesday 30 October 2012

Annmarie Lowther, HR Adviser at Liverpool Hope, looks at how organisations deal with disciplinary issues in the workplace.

With all the headlines around the late Jimmy Savile and his conduct whilst at the BBC there is a flurry of debate not only about the nature and extent of the allegations but also about how a well-regarded employer of that stature could “allow” such activities to take place.

This is an interesting question from both sides of the employment relationship: what happens when serious allegations are made against an employee related to their workplace? Where does an accusation of a criminal act leave an employee? How should an employer respond to such allegations?

Our disciplinary procedure here at Hope is quite clear: an act committed outside work should normally only result in a dismissal where it has some bearing on the employee’s work and where this impact is serious. But what if the allegations relate to activity in the work environment?

Definitions of the workplace and work environment are not easy. Most of us would recognise that we are bound by certain rules of behaviour whilst we teach or carry out our day to day work. But what happens if you we are at a work network event, an away day or the works Christmas party? This is when, for many people, the boundaries become less clear.

If allegations of misconduct at work are made the employer will investigate. In order to establish the grounds for any disciplinary matter, the employer will follow a process of investigation designed to ensure that matters are examined professionally, fairly and objectively and to allow those involved to state their version of events clearly This can involve witness statements, interviews with the person accused of misconduct and may reasonably include checking relevant phone, email or computer records.

At this point a colleague may be suspended, if the matter is very serious, involves violent or threatening behaviour or is particularly sensitive, or where their continued presence in work may in some way prejudice the investigation.

If the investigation reveals sufficient information for disciplinary action, a hearing may be initiated, with the accused colleague having all the evidence against them, and details of specific allegations, so that they may prepare a defence. The purpose of an investigation is to discover what actually happened; the purpose of a disciplinary interview is to decide what to do about it.

Where an investigation reveals possible criminal activity, the police will be contacted and, of course, the employer will co-operate fully with the police should they investigate.

No doubt, as matters progress much of the activity or otherwise of the BBC will be scrutinised closely. The employer is bound by much different standards than the police. The standard of proof required for a criminal conviction “beyond all reasonable doubt” is much higher than the test applied to determine the fairness of a dismissal, for example (see BHS v Burchell 1978).

In the employment relationship it is only necessary for the employer to hold a genuine belief, based on reasonable grounds, and having carried out as much investigation as is reasonable, to dismiss an employee in these kind of circumstances. Therefore, the level of substantiation required for a dismissal on the grounds of misconduct or gross misconduct related to a criminal case is not an insurmountable burden for the employer.

People may well ask how the behaviour alleged against Jimmy Savile was overlooked or unseen by his employer, and why he was allowed to continue in his high profile role. These are vital and necessary questions but to some extent they presuppose that today’s levels of awareness and willingness to tackle difficult or uncomfortable employment issues were extant twenty or thirty years ago, and that is transparently not the case.



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