Innocent until proven guilty’ for employee accused of assault by colleague?

A young man in my employment was recently arrested for a violent offence after one of myfemale staff members made a complaint. The police have investigated but aren’t pressing charges, as there was insufficient evidence. He denies any involvement, but the female staff member believes he committed the assault. I only have a small office so there is no way I cansplit them apart. I am concerned about the emotional impact on both of the them but if I dismiss either I feel I could be opening myself up for a tribunal.

A. Clive Mackintosh writes:

The fact that the police are not pressing charges does not mean you should not act. To do nothing would expose you to potential claims from one or both employees. This could include claiming harassment under the sex discrimination laws or the Health & Safety at Work Act 1974, where an employee has suffered psychological injury. Worse still, the House of Lords have now confirmed that employees can use the Protection from Harassment Act 1997, where the employee only needs to prove that they have been harassed on two occasions.

I think you have no option other than to investigate the circumstances of the original complaint. And the ACAS Code of Practice on Disciplinary and Grievance Procedures clearly states that an investigation must be undertaken prior to any disciplinary action. Both employees will need to be told they are under investigation. If you have cover, suspend both on full pay and terms pending the outcome of the investigation. If not, make it clear they must continue to fulfil their normal duties, not discuss the matter between themselves and that any acts of harassment would be dealt with separately and taken very seriously.

Appoint an independent investigator if no one in your organisation has the necessary experience. Whoever conducts the investigation should not be involved in the decision making at any subsequent disciplinary hearing. When interviewing the employees, make it clear that it is not a disciplinary hearing.

If you find there is no evidence to bring a disciplinary hearing against either employee, then you must inform both of them that no action is being taken and that their employment record is not affected. However, you should explain that workplace bullying is not acceptable in any shape or form.

Clive Mackintosh is the founder of Mackintosh Solicitors, which specialises in employment law and human resources advice for businesses.



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