Employers duties in respect of the accused

This is the final blog in our mini-series focusing on bullying. Part one looked at what amounts to bullying in the workplace (noting that there is no legal definition) and part two considered the difficulties of making factual findings when allegations are highly subjective (which is often the case). We now move on to looking at the accused and how an employer can and should support an employee who has been accused of bullying.

Being accused of bullying is a potentially career ending allegation. We have made clear throughout this mini-series how important it is to investigate properly bullying complaints raised by an employee. It is easy to focus the support on the alleged subject(s) of the accused behaviour, but what duties does an employer owe to an employee who is facing a potentially serious challenge to their reputation and potentially their livelihood? What support can and should they be offered by an employer?

The accused

An employer owes all of its employees a duty to take reasonable care of their health and safety. This remains the case for an employee accused of any form of wrongdoing (as long as they remain an employee). This duty covers mental as well as physical health, and can be found at common law, within health and safety legislation and is an implied term of an employment contract.

If an employer fails to satisfy these duties owed to its employees, they could face employment claims of unfair dismissal (if the process ultimately ends in dismissal), constructive unfair dismissal (if the employee resigns in response), breach of contract or discrimination (for example if an accused man says that he has been treated differently to women). There may also be the risk of a personal injury claim.

There other serious risks related to the stress of being accused, including the risk that the employee tries or succeeds in harming themselves or taking their own lives.

It is always important to remember that the accused is just that: accused. It is possible they have done nothing wrong and should be treated accordingly.

What sort of steps should an employer take to ensure that they do not breach their obligations towards the accused?

Follow policies

As ever, it is important for employers to consider and follow their internal policies. That may involve considering whether an informal or formal process is the most appropriate way to initially try and deal with a bullying complaint. Whilst the severity and nature of the allegation made must be taken into account, often informal processes can be dealt with much more discretely and may be less stressful for all of those involved. Depending on the policies engaged, mediation may also be an appropriate consideration as it could provide a structured attempt to repair any damaged working relationships.

Consider steps short of suspension

Careful consideration should be given to the accused’s working relationships with the complainant and others whilst any investigation is ongoing. Suspension should not automatically be invoked and steps short of suspension, such as transferring the accused to a different team or asking them to work from home to avoid contact with the complaint, should be considered. Moving straight to suspension could give the impression that the outcome of any investigation has been pre-determined and could draw unwanted attention to the concerns from both the complainant and accused’s point of view. If the accused is suspended, that suspension should be kept under review and the accused should be updated, as appropriate.

Put pastoral and other support in place

In terms of support, an employer should clearly communicate to the accused the support available to them, such as any pastoral contact, access to counselling, confidential helplines or employee assistance programmes. Consideration of the accused potential vulnerability should be borne in mind throughout any process and where necessary, reasonable adjustments should be made to ensure the accused feels as though their needs are being adequately taken into account and providing evidence of impartiality until any findings are made.

Explain the process and provide reassurance

The impartiality of any investigation should also be stressed and where necessary, external support and / or investigators should be appointed. It is important that the accused understands that no conclusions have been reached during the investigation itself.

As with most employee processes, confidentiality is key to both protect the accused’s reputation but also to preserve the impartiality of the investigation. The more people aware of any internal process, the more difficult it will be for the employer to ensure that a fair investigation is carried out.

What if the allegations have been made in bad faith?

Sadly, malicious complaints in the workplace are not unheard of although they are unusual. Appropriate investigation should be carried out and if it is established, often on a balance of probabilities, that a complaint has been made in bad faith, an employer should consider their disciplinary policies to decide what appropriate action should be taken against the malicious complainant to reduce the risk that this will happen again in your workplace (keeping in the potential risks of claims from the complainant of whistleblowing or potential victimisation).

Is there a reason behind the alleged behaviour?

Careful consideration should also be given as to whether there have been any triggers for the accused behaviour, such as any mental health concerns, work-related stress, or a change in personal circumstances.

Whilst these things are important to take into account, they are not necessarily an excuse for poor behaviour. However, they may be relevant in terms of mitigation to ensure that the employer’s response is proportionate and fair in the circumstances.

Summary

Understandably employers are often keen to show that they have a zero-tolerance approach to bullying in the workplace (itself a difficult stance to maintain given the complexities and nuances of human behaviour – but that’s a different discussion!). However, zero tolerance does not mean that the individual accused in a particular case should be treated harshly from the outset. Employers must bear in mind the duties they owe to all employees in respect of their wellbeing and recognise the impact bullying allegations could have on the accused.

In short, employers should keep in mind the wellbeing of all individuals involved in any bullying investigation and nurture a supportive environment for all its employees. At its simplest, any steps you take to protect the person raising the concerns should be considered for the person accused.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, October 2023