How should an employer deal with a third party complaint against a member of staff?
Published 17 July 2023
The latest scandal involving a well-known TV presenter highlights a number of important employment issues and the problems employers can face in dealing with them.
The revelations about BBC presenter Huw Edwards and alleged inappropriate behaviour with a younger person dominated headlines when the story broke.
It started off as a guessing game because the name of the respected newsreader was kept secret, well secret from those who may not be au fait with social media.
The speculation ended unexpectedly when Vicky Flind, Mr Edwards wife, revealed his identity and the fact he was seeking in-patient help for serious mental health issues
The reported timeline of events show the problematic and difficult issues an employer can face dealing with a complaint about the conduct of an employee outside of the workplace [2 cited 17.7.23]
The family of the young person first complained to the BBC on 19 May 2023 and are said to have become frustrated when Mr Edwards stayed on air
The story broke on 7 July and the broadcaster said “We treat any allegations very seriously and we have processes in place to proactively deal with them.”
Two days later – and over seven weeks after the complaint was made - Mr Edwards was suspended from work. The following day the Metropolitan Police announced it would investigate to establish whether any crime was committed.
On 12 July police announced no criminal offence had been committed, and
Vicky Flind revealed her husband’s identity.
Later new allegations were made that Mr Edwards had sent inappropriate messages to colleagues [3 cited 17.7.23]
The story throws up a number of situations and scenarios that any employer could have to deal with, and may well have dealt with previously.
Here we take a look at six issues from the Huw Edwards and BBC case and provide essential guidance on what an employer should do in each situation.
1. A complaint about a member of staff made by a third party
Dealing with such a complaint for example from a member of the public, a spurned spouse or partner, a customer or business contact can be a challenging and sensitive situation.
Regardless of the nature of a complaint, as an employer you have a duty to investigate and take action if appropriate and necessary.
Ensure you respect the rights and interests of the employee, and follow a fair and reasonable procedure.
In dealing with a third party complaint against an employee, you should:
- Establish as much as you can about what happened. Speak to the complainant and ask for as much information as possible. Note and keep a record of incidents and keep the matter private and confidential.
- Not unnecessarily delay telling the employee about the complaint. They should be given a chance to respond and explain, and you should listen carefully and objectively.
- Find out what happened and carry out a thorough and fair investigation. It could include speaking to witnesses, reviewing documents or any video or photo evidence. Appoint an appropriate person to investigate, which should be someone not directly involved in the case.
- Evaluate the nature and seriousness of the complaint and its impact on the employee’s job and your reputation.
- Take appropriate action based on the findings of the investigation, which should be proportionate to the severity of the complaint and consistent with your policies and procedures.
- Inform both the complainant and the employee of the outcome of the investigation, explain it if necessary, and detail as much as you can about the action to be taken.
- Offer support to both parties if appropriate and guard against any retaliation or victimisation against anyone involved in the matter.
2. Dealing with an employee’s alleged misconduct outside of work
You should consider any allegation of misconduct by an employee outside of work. Especially, if the behaviour is inappropriate, illegal or damaging to your reputation or interests.
No matter how serious an allegation is, avoid a knee-jerk reaction. Every allegation will not always require disciplinary investigation or justify dismissal.
If the alleged misconduct has a bearing on the employee’s job, then you may be entitled to take disciplinary action.
The main issues to consider, are the impact of the conduct on the employee’s ability to do their job and the potential damage to your reputation.
For example, the Nursing and Midwifery Council - the independent regulator for nurses and midwives in the UK - will not investigate all criminal offences, including in some circumstances convictions for drink driving [4 cited 17.7.23]
Key factors for any employer to consider when dealing with alleged misconduct outside of work are:
- Nature and seriousness of the misconduct
- Impact on your business, reputation, or customers
- The employee’s role and responsibilities
- The previous record and length of service of the worker.
- Any explanation and remorse
- Your policies and rules on misconduct
- Legal implications and risks of taking action.
You must follow a fair and reasonable procedure before taking any action.
An employee should not automatically be suspended when an allegation is made against them. You should consider alternatives.
Suspension is a serious measure that should only be used when necessary and justified.
ACAS guidance does state: suspension will only be appropriate in some situations. An employer should consider each situation carefully before deciding whether to suspend someone [4 cited 17.7.23].
The guidance adds: You should only consider suspension if you reasonably believe it would protect any of the following:
- The investigation – for example if you're concerned about someone damaging evidence or influencing witnesses.
- The business – for example if there's a genuine risk to your customers, property or business interests.
- Other staff.
- The person under investigation.
If you decide to not suspend an employee, you can still consider suspension later in the investigation if circumstances change.
If you decide to suspend someone, it is important to support them during suspension.
- Police investigation
Ordinarily you should carry out your own investigation instead of waiting for and relying solely on the outcome of a police investigation.
However, take advice to make sure any investigation you plan to carry out will not impede or undermine a criminal investigation, which may be running in parallel.
If there is police involvement, officers should not be asked to conduct any investigation on your behalf and they should not be present at any meeting or disciplinary hearing.
- Employee is unwell during an investigation
You should investigate as much as is practically possible, which can include interviewing witnesses and gathering any relevant evidence.
It is essential the employee is given every opportunity to take part in the process and to cooperate with the investigation. So, wait for as long as is reasonably possible to allow them to participate
If it is a long-term sickness absence, then seek medical advice on the employee’s fitness to take part in an investigation and on recommendations for any adjustments, which may enable them to do so.
If the employee cannot, or refuses, to take part in the investigation, you will need to look at the case and come to a reasonable decision. But seek expert advice before you act in such a situation.
- New allegations become known during a disciplinary investigation
If this does happen make the employee aware of any new allegation/s as soon as possible. Inform them of the impact it will have on the process and timescales.
A new allegation should be treated in the same way as any other allegation.
You should conduct a thorough and fair investigation, take appropriate action and inform the employee what will happen next.
With any new allegations do not make assumptions, which is easy to do in light of other accusations already being investigated.
Establish the facts quickly to avoid any unnecessary delays to the process and base any decision on those findings.
If you are an employer and you need advice, help or support to manage a third party complaint against a member of staff contact our Employer Support Centre. Or call us for a free initial consultation on 0808 588 0151