Everyone’s Invited – employment law

Many testimonials on the Everyone’s Invited website involve allegations of sexual abuse and violence made by students and/or former students against both existing and former staff of schools, colleges and universities.

It is vital not only in terms of an educational institution’s statutory safeguarding obligations to its students and staff but also as a matter of best employment practice that such allegations are taken very seriously and properly investigated following the organisation’s own procedures.

Many organisations have in place a specific sexual harassment policy or an anti-harassment and bullying policy and procedure. Where they do not then they should follow ACAS’s Code of Practice on disciplinary and grievance procedures.

In the case of allegations made against a member of staff still working at an educational institution, it is important to note, before embarking on such an investigation, that as an employer, the school or college also owes obligations to the employee including the obligation of trust and confidence which underpins every employee’s contract of employment. Should an employer fundamentally breach these obligations it may lead to the employee resigning and, in the case of an employee with over two years’ service, claiming constructive dismissal (a category of unfair dismissal). It is worth noting that the statutory cap for an unfair dismissal compensatory award rose in April 2021 to the lower of £89,493 or 52 weeks gross pay.

Careful thought therefore needs to go into the way in which the complaint will be handled to ensure the educational institution does so, fairly, thoroughly, sensitively and swiftly so as to avoid unanticipated liabilities for the organisation. It ought to do so impartially and not to presume the accusation is true or false.

Given the serious nature of the allegations, as a starting point, the educational institution may want to suspend the employee that is the subject of the allegations given their serious nature. Suspension would be appropriate if there is a risk to the investigation’s integrity, a risk of harm to other students or staff. Any suspension would need to be on full pay. Withholding pay may result in the accused employee again claiming a fundamental breach of contract  (on the basis of withholding pay)  as well as representing a punitive measure signalling to the employee that the outcome has been pre-determined. It is important that whilst conducting the investigation that the educational institution maintains an open mind so as not to prejudice this.

Many of the complaints on the Everyone’s Invited website relate to incidents and patterns of behaviour alleged to have taken place sometime in the past.

The educational institution ought to take such complaints no less seriously and try to deal with them as completely as they possibly can.

Where a lot of time has passed there will inevitably be limits on how far the complaint can be investigated. This is particularly the case where the accused member of staff no longer works there or witnesses no longer work there or attend the school or college.

As a starting point to the investigation the educational institution should try to speak to the person making the allegation(s). In interviewing them the educational institution ought to try to make reporting the allegations as easy as possible. It is important the person feels that they are being taken seriously, supported, safe and protected.

The educational institution will also need to interview the accused employee as well as anyone else who may have witnessed the alleged behaviour of which they are accused. It is important to recognise as ACAS state that to be accused of such behaviour is likely to be very distressing for the employee also. Given the duties and obligations an employer owes its employees it is important that they feel and any explanation provided is listened to, also that they are reassured that the person investigating the allegation(s) is impartial.

Once both the accuser and accused have been spoken to then if it is suspected a crime may have been committed then the educational institution will need to address the issue of reporting the matter to the police. The police may ask that the educational institution suspends further investigation whilst it conducts its own criminal investigation so that the criminal investigation is not compromised in any way.

Where the educational institution is unsure as to whether a crime has been committed though it ought to tread carefully. The courts have laid out guidance in such circumstances. An employer who refers suspect or frivolous allegations to the police could be doing so in breach of the accused’s contract of employment. The Court of Appeal has stated an employer should not refer possible criminal allegations to the police without ‘the most careful consideration’ and only when there is ‘a genuine and reasonable belief’ that the alleged misconduct could be classed as criminal. Relevant factors for the educational institution  to base its decision on include the strength of evidence supporting the allegations, the seriousness of the alleged offence and any concern for others in the workplace (e.g. children or vulnerable adults.)

The educational institution also needs to consider its own safeguarding obligations and consider making a referral to the relevant authorities if there is a concern of risk of harm (for example risk of harm to a child then a referral to a Local Authority Designated Officer and/or the Disclosure and Barring Service).

In carrying out its own internal  investigation, it is important also that the educational institution keeps the complaint as confidential as possible. Information should only be provided on a strictly ‘need to know’ basis. The importance of confidentiality should be explained to those interviewed as part of the investigation. This is particularly important to protect both accuser and accused.

Once the investigation has been completed, following a full and fair procedure, then the outcome will need to be determined, including, of course, the decision as to whether the allegation(s) are to be upheld or not. The outcome ought to be communicated to both the accuser and accused in writing and a decision taken based on the outcome and available evidence as to both what actions are necessary to resolve the complaint and whether disciplinary action ought to be taken against the accused.

In taking disciplinary action (including dismissal) against the accused employee, it is important that proper disciplinary procedures are followed once again so as to avoid a claim of unfair dismissal. It is unlikely though that as part of this procedure the allegations will need to be investigated again unless new evidence comes to light. If so such evidence ought to be properly investigated. Assuming the employee is dismissed summarily by reason of gross misconduct then they will not be entitled to notice pay or payment in lieu thereof.

In making its decision, it is important to note also that the educational institution does not simply rely on any decision arising out of any criminal investigation that has taken place by the police, the CPS or outcome of criminal proceedings. The standard of proof in disciplinary proceedings is not as high as in criminal proceedings. In any internal investigation the evidence has to indicate it is more likely than not that the employee has committed a breach, rather than it is beyond reasonable doubt (the criminal test).

If the complaint is upheld and the person accused of carrying out the behaviour is dismissed then the educational institution also needs to consider whether other steps are appropriate including further engagement with the victim, reviewing its safeguarding and anti-harassment procedures as well as offering staff counselling.

Written by Julian Cox, Partner at BLM julian.cox@blmlaw.com

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