Welcome to Wrigleys' Employment Law Bulletin, April 2022.
We are busy planning for our annual Employment Law Conference for Charities which takes place on 16 June 2022. The theme for the day is Inclusivity in Today's Working Environment. This will be a whole day virtual conference and we will be delighted to welcome some brilliant, thought-provoking speakers. The final programme is soon to be announced and will include sessions on equality, diversity and inclusion, improving support for staff going through the menopause, the rights of trans staff, neurodiversity in the workplace, and recent developments in family friendly rights and policy. You can book your place by clicking on the link below. We look forward to welcoming you to our conference!
In our bulletin this month we consider some tricky and developing areas of law, policy and practice for employers.
In our first article, we cover the issues for employers who are considering whether to report to external agencies child protection or domestic abuse allegations against an employee.
With increasing numbers of staff likely to be needing time off in relation to fertility treatment, we consider the benefits of having a clear workplace policy for staff undergoing fertility treatment or assisted conception.
And in our final article, we examine two tricky areas of discrimination law where employees can be protected under the Equality Act 2010 without having the protected characteristic in question: discrimination by association and perception.
We are always interested in feedback or suggestions for topics that may be of interest to you, so please do get in touch.
Should employers report child protection concerns or allegations of domestic violence involving an employee?
Dealing with an employee who may be a perpetrator of violence or abuse.
Working from home on a more regular basis has meant that many of us know more about our colleagues' home lives than ever before. Much of this has been positive and enabled employers to empathise with the challenging family situations employees have encountered over the last two years. But it has perhaps also made more likely that allegations involving abuse of family members by an employee will come to the attention of an employer. What should an employer do when allegations of this kind arise?
Follow your organisation's safeguarding policies and any statutory guidance
Organisations that work with children and vulnerable people will have their own safeguarding policies and procedures based on statutory guidance, such as Working Together to Safeguard Children and Keeping Children Safe in Education. It is important that all colleagues are aware of the steps they should take when safeguarding concerns arise. In particular, they should know who to report their concerns to internally so that a referral decision can be made.
Follow any internal safeguarding policies and procedures, including considering whether the allegations meet the threshold for reporting a regulator, social services or the Local Authority Designated Officer.
Charities should also take advice on whether the circumstances might warrant a serious incident report to the Charity Commission.
Is there an immediate threat of harm?
If employers have serious concerns that the employee or another person is at risk of immediate harm, they should contact the police and/or another relevant agency, such as social services.
In most cases there is no legal duty to report to social services or the police
Even in regulated sectors such as education and adult social services, there is no positive legal duty to report concerns of abuse or criminal conduct, although organisations and the professionals working within them must have regard to the relevant statutory guidance.
The only exception to this is that those working in schools, healthcare and social care have a legal duty to report suspected cases of female genital mutilation.
Reporting "frivolous" allegations to the police can be a breach of trust and confidence
Case law indicates that an employer who refers "suspect" or "frivolous" allegations to the police could breach the implied term of mutual trust and confidence by doing so.
Police investigation and/or criminal proceedings are likely to cause serious damage to the reputation of an employee, particularly one working in a regulated sector. If the employee were to resign and bring a constructive dismissal claim, a tribunal might find that the employer had made the report without good reason and could feasibly award significant compensation if it determined that the employee's earning potential was permanently affected by reputational damage.
Employers should therefore very carefully consider whether the allegations are likely to amount to criminal behaviour and whether there is good reason to report them to the police.
Advice for employers on domestic abuse
In June 2021, an updated Domestic abuse: a toolkit for employers was jointly published by Public Health England and Business in the Community (BITC).
This toolkit provides very useful guidance for employers on dealing with the difficult issue of suspected domestic abuse where it involves employees. As well as providing guidance for employers who believe their employees are victims of abuse, the toolkit also provides advice where employees are suspected perpetrators of abuse. For example, employers are encouraged to have a policy on domestic abuse which is actively promoted, to work alongside specialist agencies to reduce risk to family members and employees, and to be very careful about sharing information with the perpetrator where this may increase risk to others.
Should we commence a disciplinary investigation into the employee's private life?
In answering this question, employers will need to consider whether the allegations in question have an impact on the employee's role, the individuals they work with, or the employer's organisation (for example the employer's reputation or relationships with third parties).
If such an impact is likely, the employer should carry out an initial investigation. Where the police or another agency are involved, the employer should ask for relevant information which can be shared about the case, and seek their views on carrying out an internal process. In some cases, the police may ask the employer to delay any such process, or even not to raise the allegations with the employee, so as not to prejudice the police investigation.
The findings of an initial investigation may lead the employer to consider suspending the employee where there are unacceptable risks to colleagues, service users or other individuals, or to the integrity of the investigation, if the employee remains active in their role. However, this should be based on specific identified risks and should not be an automatic reaction. Alternatives to suspension should be explored, such as making temporary changes to the role or increasing supervision.
There may be cases where it is not necessary to commence an internal investigation and disciplinary process if the allegations have no impact on the employee's role or the employer organisation.
For further detail on dealing with cases where police investigations overlap with internal proceedings in a schools context, please see our previous article: Dealing with School Employees who are being Investigated by the Police (available from our website).
Dismissal for reputational damage arising from employee's private life
The case of Q v Secretary of State for Justice provides helpful guidance for employers undertaking disciplinary procedures linked to child abuse allegations.
In this case, it was alleged that a probation officer had put her own child at risk, and that she had failed to inform her employer of a child protection plan after receiving a disciplinary warning and being instructed to keep the employer up to date.
In this case, the employer's safeguarding obligations and the likelihood of damage to the employer's reputation, particularly with the local authority as its statutory safeguarding partner, were key to the EAT's decision that the dismissal was fair and that the employer's interference with the employee's right to a private life had been lawful.
To view the full article click here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
