Hello, my name is ***** ***** it is my pleasure to assist you with your question today. How long has he worked there for?
3 years on April 2015
ok thanks let me get my response ready please
First of all it is important to note that being placed on suspension is not an automatic assumption of guilt and does not amount to disciplinary action. It is there to be used as a precautionary measure whilst an employer investigates any allegations against the employee. Reasons for suspending could be in the case of gross misconduct, breakdown of relationship, risk to an employer's property, their clients or other employees, to preserve evidence or ensure it is not tampered with, avoid potential witnesses being pressured or intimidated, etc.
During the period of suspension the employer should conduct a reasonable investigation into the allegations against the employee. If the investigation gathers enough evidence to justify the taking disciplinary action that could be the next step. In that case the employee has the right to be informed in advance of the allegations against them and be given the opportunity to prepare for the hearing.
On the other hand, if the investigation does not find enough evidence to justify a disciplinary, the employer should terminate the suspension immediately and allow the employee to return to work as normal.
An independent investigation does not mean that an outside party has to conduct it – there is no legal requirement for an employer to involve a third party and they are legally entitled to use internal resources for this. Independent means no one who is involved in the allegations should be involved so that there is no bias.
Also there is no obligation on the employer to involve the police, either now or at any later stage – they can conduct their own investigation and take a decision based on their findings, without relying on any police evidence.
Finally, he is not allowed legal representation in an investigatory or a disciplinary hearing – this is not the same as a criminal trial, all he can do is bring in a colleague or a trade union rep.
So what happens if he is disciplined and we want to contest, do we have rights?
yes you do, firstly he will be able to defend himself at any disciplinary hearing, then he can formally appeal the outcome if he does not agree with it, finally should he get dismissed he also has the option of making a claim for unfair dismissal in the employment tribunal
At what point can we get the police involved?
you can't really, it is not for you to do that, he is not the one complaining of a criminal act, it would be for whoever the victim of the alleged crime is to get them involved
When should we seek further legal advice as I feel he is being unfairly treated at present
legal advice in these circumstances can only really be taken if he is dismissed and he is considering taking the natter further, there is little an employer can do with an internal investigation as they are not really allowed to interfere much
did you mean employee then?
no I see what you mean
sorry it was meant to say lawyer, not employer
So he feels victimised and defenceless at present so we don't know what to do?
the best is to cooperate with the investigation and see where the employer takes this - the further it goes the more rights he will get as the process becomes more formal, saying that they could also decide not to take any further and drop it if no sufficient evidence exists
Can I clarify anything else for you?
sorry - if the investigation gets dropped due to insufficient evidence, this does not clear his name, he would want to clear his name so that he does not feel permenantly under watch and under suspicion
can he insist it goes further in order to clear his name or insist on clarification in writing that he is no longer undersuspiciaon and name cleared of any allegations?
he has just been refused to take a colleague into the investigative meeting - is this correct
no he cannot force his employer to take the matter further, if no formal action is taken then he is considered innocent as he has not been found guilty of anything, so even though allegations were initially made against him, the end to the investigation and no disciplinary means the matter comes to an end and he is considered innocent
it will be the investigative officer, a member of HR and my partner only
he is not entitled to bring anyone with him to the investigatory meeting - the right only applies to a formal disciplinary hearing
Ok, thank you for your help.
is there grounds for compensation should this affect relationships at work and the intimidation that he has undergone
he cannot just make a claim for this, he would either have to be unfairly dismissed and win an unfair dismissal claim or feel he was forced to resign and claim and win a constructive dismissal claim, also I do not see that the employer has actually one anything wrong here - they have received an allegation against him and they are investigating it, it is what an employer is expected to do and even if the allegations are false they may not know that yet and must be given the opportunity to investigate this
I have to leave the office shortly, can I clarify anything else for you now before I go? I will be able to discuss any other questions later if you wanted to, once I get home
No thank you for your help.
you are welcome, all the best