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Addressing old complaints and grievances

Published 26 September 2023

Dealing with serious and historic allegations of wrongdoing is a situation any employer could find itself in - and it can be challenging and problematic.

 

We have heard in recent years of a number of cases in which work-related complaints of harassment, discrimination, abuse of power and even criminal acts have in the past been treated dismissively or even covered up.

 

There is now, thankfully, a much greater focus on such behaviour, and victims are encouraged to come forward and speak up, and being supported to do so.

 

We have covered in this space a number of high profile cases in which well-known and revered organisations have had to deal with historic allegations of serious wrongdoing.

 

In July, Huw Edwards was named as the BBC presenter accused of a string of allegations, including paying a teenager for sexually explicit photos. The BBC announced it would investigate the allegations.[1 cited 26.9.23]

 

It was revealed in May that ITV had commissioned an external review following Phillip Schofield's departure from This Morning and the admission that he had lied about an affair with a younger colleague[2 cited 26.9.23]

 

Claims by former cricket player Azeem Rafiq about racism led to the resignation of several top officials at Yorkshire County[3 cited 26.9.23]. The club launched ‘a formal investigation’ in response to Rafiq's claims.

 

While recently it was reported the BBC, Channel 4 and a production firm have said they are investigating after allegations that Russell Brand sexually assaulted four women[4 cited 26.9.23]

 

The comedian and actor has been accused of rape and sexual assaults between 2006 and 2013, which he denies.

 

The seriousness of any historic complaint will obviously dictate how it is investigated and who by, especially if it relates to criminal activity.

 

But regardless of how serious an accusation is, or the size of the employer, any allegation of previous wrongdoing made against an employee or ex-employee should be taken seriously.

 

Simply ignoring a complaint about incidents that may have happened some time ago, is never a sensible option.

 

No employer is exempt from its legal obligations or potential consequences for failing to handle any type of complaint or grievance appropriately.

 

While a small or medium-sized business may believe it lacks the resources to investigate historic matters, it should never be dismissive of such complaints.

 

For any employer having to hear, investigate and address any old allegation it can be daunting.

 

The perpetrator may have left, evidence may have been lost and the memory of witnesses may have faded or be questionable.

 

Here we take a look at how allegations regarding previous wrongdoing by an employee may be raised with an employer, and how it should deal with the situation.

 

What is a historic grievance or complaint.

 

It is a formal report of mistreatment, unhappiness or a concern about something that happened in the past.

 

The nature of such a complaint can vary e.g. pay, discrimination, harassment, bullying or unfair treatment.

 

The matters can be sensitive, complex and difficult to investigate and resolve.

 

Allegations should be taken seriously and not ignored or simply brushed off because the incidents occurred some time ago.

 

Who can make such a complaint?

 

A historic complaint against a current or ex-employee can be raised by anyone who has a genuine work-related grievance about something that happened in the past. It could be a current employee, former member of staff, client, contractor or trade union representative.

 

It is reasonable for an employer to question: why is the issue being raised now?

 

There can be many valid reasons why concerns were not highlighted at the time, such as fear of retaliation, lack of awareness or new evidence.

 

Any complaint should be taken seriously and handled sympathetically in order to establish if it is valid.

 

How will such a complaint be raised?

 

It can be reported in many different ways, which can include:

 

  • An employee who is leaving their role may highlight something that has occurred in the past.
  • Written complaints may be in a letter, email or social media post.
  • A solicitor’s letter sent on behalf of a former member of staff.
  • Or come to light as a result of another work-related investigation such as one into whistleblowing or a formal grievance.

 

In whatever way an employer is made aware of historical allegations levelled against an employee or ex -employee, it should take them seriously and conduct a fair and reasonable investigation to establish the facts and decide if any action is necessary.

 

Advice for employers on how to deal with a historic complaint or grievance

 

It is important not to delay and to address the matter promptly and fairly and to follow any established policies and procedures.

 

Acknowledge it in writing and confirm it the matter will be investigated.

 

Appoint a suitable and trained investigator who is impartial and has no involvement in the matter. This can be a challenge for a small or medium sized business due to limited resources. An external investigator such as a human resources consultant, or a neutral third-party investigator can be hired to carry out an independent and objective investigation and avoid any conflicts of interest or bias that may arise from an internal investigation

 

The investigation should be thorough and gather any available and relevant evidence. Interviews should be conducted with witnesses.

 

Once an investigation is complete, the investigator should reach a decision based on the evidence and information gathered. The decision should be communicated in writing to the person who raised the complaint or grievance. It should explain what action will be taken if the complaint or any aspect of it is upheld. If it is not upheld the individual should be given the opportunity to appeal the decision if they are dissatisfied with the outcome.

 

Keep detailed records of any historic grievance, the investigation process, and the outcome. Such documentation is essential for accountability and any potential legal action that may follow.

 

Take any learning from the situation and consider if there is a workplace culture or any systemic issues that need to be addressed or changed. It can help to prevent similar situations from occurring in future.

 

As an employer you should demonstrate fairness, impartiality and a commitment to addressing all grievances seriously.

 

In cases where a complaint includes criminal allegations, such as theft, assault, harassment, or fraud, you should contact the police.

 

It is advisable to seek expert advice when faced with having to deal with a historic grievance, particularly one that is complex.

 

Our Employer Support Centre can provide invaluable assistance to ensure the matter is dealt with legally and to protect all parties involved.

 

How can you conduct a reasonable investigation into allegations which may be many months if not years old?

 

It can be challenging, but it is still possible to conduct a fair and thorough investigation in such circumstances.

 

Look for and collect any relevant documentation that may still be available, such as emails, memos, reports, and records related to the historic grievance.

 

Witnesses may still be accessible, so an attempt can be made to interview them about anything they may have witnessed at the time. Contact former employees who may have been involved or willing to help.

 

Employment records such as personnel files, performance appraisals, and disciplinary records, may include reference to matters that are now being raised.

 

Investigating in such circumstances is a difficult task especially for small and medium sized business. But do not ignore the matter because there can be legal risks in doing so. It is always advisable to seek expert guidance on how best to address such a complaint.

 

Finally

 

An employer should deal with a historic complaint or grievance by following a clear and fair procedure. Take all allegations seriously and do not dismiss them just because they happened some time ago, especially if they involve serious accusations of wrongdoing.

 

Decide whether to conduct an internal or external investigation, communicate with all parties involved and keep them informed of the progress and outcome of the investigation. Take appropriate action to resolve the complaint and prevent any recurrence of the issue

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For employment law advice or if you are affected or want information and support by any of the issues in this article please give us a call. 

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