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Health e-briefing: How employers should manage allegations of abuse against their employees.

  • United Kingdom
  • Health and life sciences - Healthcare e-briefings

27-08-2013

The health care sector is somewhat unique in that employers will not only be dealing with allegations from employees against employees but will also have to deal with allegations from patients (and their relatives), customers and residents. In our July legal update we discussed the circumstances in which employers can be held liable for acts of abuse by their employees against people in their care. In this article we seek to cover how employers should manage allegations of abuse against their employees.

1. Policies and Procedures

It is important to have the right policies and procedures in place which set out the standard of behaviour expected of staff and the procedures that will be followed on receipt of any allegations. Abuse can take many forms: physical, verbal, financial, so it is important that staff understand the restrictions that operate around their roles and responsibilities and receive the appropriate training. Employees should also feel able to report any concerns they have. If they do report such concerns they are likely to be covered by the law on whistleblowing, which means they are generally protected against being subject to a detriment as a result of having reported a concern providing such disclosure is in the public interest.

2. Steps to take when an allegation is made

All employers should have internal disciplinary procedures which set out how allegations of misconduct will be dealt with. Employers must also comply with the ACAS Code of Practice on Disciplinary and Grievance Procedures, which sets out the minimum process which must be followed.

One of the first considerations is likely to be whether it is appropriate to suspend the employee at the centre of the allegation and most disciplinary procedures make provision for this. Suspension should not be a knee jerk reaction and consideration should always be given as to whether it is appropriate in each situation depending on the seriousness of the allegation and whether it is likely that a fair investigation can be carried out if the employee remains at work. Alternatives to suspension, for example change of workplace or working pattern should be explored.

It may be necessary to report the allegation to the police. A police investigation may mean that an employer’s internal investigation has to be put on hold and employers should be guided by the police as to what investigations can be ongoing internally (if any) whilst a police investigation is carried out.

The employer may also have obligations to report the matter to a third party, for example, the Local Authority Designated Officer (in respect of allegations concerning children), who can assist and advise with any investigation.

Assuming an internal investigation can go ahead then it is important that allegations are investigated as soon as possible before memories fade. Consideration will need to be given as to whether the alleged victim of the abuse can be interviewed and any such interview will need careful handling.

In any subsequent unfair dismissal claim a Tribunal will be considering how the investigatory and disciplinary procedures were carried out. No employer will want to lose a claim because their internal procedures were found wanting. As the Employment Appeal Tribunal held in A v B [2003] serious allegations of criminal behaviour, where disputed, must always be the subject of the most careful and conscientious investigation. In this case a residential social worker in a local authority children’s home was accused of having had an inappropriate relationship with one of the children at the home, a 14 year old girl. He was dismissed following an investigation.

The Employment Appeal Tribunal found that his dismissal had been unfair based on the conduct of the investigation. Statements which were taken as part of the investigation which might have assisted the employee were not provided to him and staff who may have had relevant evidence were not interviewed at all. In addition there was a significant delay (caused in part by a police investigation) of two and a half years between the allegations being made and the disciplinary hearing.

This emphasises that, the more serious the allegation and the potential consequences, the more thorough the internal investigation should be.

3. Reporting obligations

Employers should bear in mind their obligations to refer employees dismissed for abuse to relevant third parties. This could include any regulatory authority, such as the General Medical Council or the Nursing and Midwifery Council, but it may also include the Disclosure and Barring Service (“DBS”) where those employees are carrying out regulated activity. The DBS (previously known as the Independent Safeguarding Authority) maintains the lists of those people barred from working with children and vulnerable adults.

The duty to refer to the DBS generally arises when an employer has permanently removed someone from regulated activity, or would have done so if that person had not left, resigned, retired or been made redundant. Details of any investigation undertaken, including copies of evidence obtained must also be provided. The DBS has no investigatory powers so it relies solely on the information provided with the referral, again emphasising how important it is to conduct a thorough investigation.

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