alleged assault, forthcoming disciplinary

[bluebottle]

Re: alleged assault, forthcoming disciplinary

well another difficulty with the case is that the investigation certainly did not go into the fine distinction of what exactly the incident amounted to. Where a boundary line might be between acceptable behaviour and something more. It did not go past the impasse on whether or not it happened at all to the further question of what was claimed to have happened might amount to. This was another can of worms.

I'm not sure what you mean by treading carefully? As best I know, there is no independant evidence of any sort that either assault took place. Just the word of the person claiming to have been assaulted. The investigation concluded that because two people had made similar claims about different incidents, it was probably true.

As far as I have been able to find out so far, i dont see why the employer needs to tread very carefully indeed? At worst they wrongfully dismiss someone and then have to pay a fine quite possibly no bigger than wages would have been for a long suspension. More cost effective just to fire em and hire someone else.

The reason I said what I did was because I dealt with a case when a copper where a person reported an alleged Battery by a work colleague who was sacked as a result of the allegation, even though the work colleague denied the allegation. However, when the alleged "victim" was informed the matter was being referred to the CPS, they admitted to making a false allegation and did it to get the work colleague sacked, simply, because they didn't like them. When we told the employer what had happened, we very nearly had a real Battery on our hands. Once the employer had calmed down and promised not to shake the errant employee warmly by the throat, he immediately reinstated the innocent employee with no loss of pay and sacked the errant employee which was the best thing to do as that employee subsequently got 10 months for Perverting the Course of Justice and Wasteful Employment of Police.

[sandeman]

Re: alleged assault, forthcoming disciplinary

double post

[sandeman]

Re: alleged assault, forthcoming disciplinary

well thats encouraging, I suppose. Not that I would like this to proceed as far as referral to the police, being charged and then having to rely on someone to recant. It seems to me that it is already a problem that since it has gone as far as it has, the people now risk losing their own jobs if they change their story. Why withdraw the complaint if it gets you sacked for lying about it? Never mind if doing so gets you sent to prison. It seemed to me that a good point to make at the hearing was that the person making the allegation could never own up to a false allegation because it would immediately get them sacked. They have a huge incentive to keep lying.

Both complainants initially did not want to press their allegations. Their managers seem to have pressed them to do so. This seems to be contrary to company policy, where managers are supposed to leave such things to the choice of the individual. However they did, and so the difficulty of withdrawing becomes greater. It might be necessary to save their jobs in order to get them to withdraw. Thats very perverse.

[bluebottle]

Re: alleged assault, forthcoming disciplinary

well thats encouraging, I suppose. Not that I would like this to proceed as far as referral to the police, being charged and then having to rely on someone to recant. It seems to me that it is already a problem that since it has gone as far as it has, the people now risk losing their own jobs if they change their story. Why withdraw the complaint if it gets you sacked for lying about it? Never mind if doing so gets you sent to prison. It seemed to me that a good point to make at the hearing was that the person making the allegation could never own up to a false allegation because it would immediately get them sacked. They have a huge incentive to keep lying.

Both complainants initially did not want to press their allegations. Their managers seem to have pressed them to do so. This seems to be contrary to company policy, where managers are supposed to leave such things to the choice of the individual. However they did, and so the difficulty of withdrawing becomes greater. It might be necessary to save their jobs in order to get them to withdraw. Thats very perverse.

What you have described sounds very much to me like harassment, as defined by the Protection from Harassment Act 1997. Section 7 of the Act includes encouraging others to engage in conduct any reasonable person would consider to be harassment (The Act calls this "counselling".). Serving police officers readily admit that trying to build a criminal case under PfHA is notoriously difficult, but Parliament has provided a civil remedy under Section 3 of the Act which can be far more effective. It involves seeking an injunction under Part 8 of Civil Procedures Rules, but such injunctions pack quite a punch if whoever is on the receiving end of such an injunction chooses to ignore the order of the court. However, seeking a Part 8 injunction is not something that should be entered into lightly.

From the circumstances described, the employer would be served with a copy of a Part 8 injunction, due to them having vicarious liability for the managers who are encouraging the two employees to lie, but the managers would be named as defendants.

[sandeman]

Re: alleged assault, forthcoming disciplinary

I have not seen any evidence that the managers concerned knew that the allegations were false. However, this conversation has raised another point, because one of the managers might in fact have been responsible for video recordings, the ones which no longer exist. This might mean that he could have seen evidence the allegation was false, but still pressed the employee into making the allegation. There might have been some disciplinary point at stake, such as a misdemeanor the employee was doing at the time. which encouraged him to make up a lie to cover himself.

If the manager honestly believed the story he was being told and then pressed the employeee to formalise it, would that still be an offence, because it eventually turns out to have been false?


As I said, i think pressing someone to formalise an allegation would be contrary to company policy, but that in itself is an internal matter. Or maybe not?

[bluebottle]

Re: alleged assault, forthcoming disciplinary

I have not seen any evidence that the managers concerned knew that the allegations were false. However, this conversation has raised another point, because one of the managers might in fact have been responsible for video recordings, the ones which no longer exist. This might mean that he could have seen evidence the allegation was false, but still pressed the employee into making the allegation. There might have been some disciplinary point at stake, such as a misdemeanor the employee was doing at the time. which encouraged him to make up a lie to cover himself.

If the manager honestly believed the story he was being told and then pressed the employeee to formalise it, would that still be an offence, because it eventually turns out to have been false?


As I said, i think pressing someone to formalise an allegation would be contrary to company policy, but that in itself is an internal matter. Or maybe not?

One huge mistake employers and HR consultants make is to overlook other areas of the law when dealing with workplace incidents. Company policy does not supersede the law of the land; it is subservient to and must comply with the law of the land. Also, an employer has no right or power in law to deprive an employee of their right of prosecution, whether civil or criminal.

Under English Criminal Law there is something called Recent Complaint where the victim of a crime reports the crime to a third party as soon after the event as is practicable. However, if the person to whom the crime is reported believes what the person making the allegations says is true and has no reason to believe otherwise and encourages the person to formalise their allegations, this, in itself, is not unlawful or illegal.

However, if the third party subsequently discovers the allegation to be false, they have a duty to act. If, for example, an indecent assault in the workplace has been reported to the police and the person who made the allegation subsequently admits to a manager to making up the allegation, then the manager has a duty to inform the police of this. On the other hand, if the manager did nothing, they would be committing an offence at law. Likewise, it is a civil tort as well as a criminal offence to encourage a person to make a false allegation against another.

[sandeman]

Re: alleged assault, forthcoming disciplinary

So here is a scenario. The HR department has a complaint on the books which the complainant has refused to make formal. Another complaint arrives, and HR tell the first complainant that now he has done it again, so the first complainant must also complain, which he does. Then HR come into possession of some new evidence which suggests the second complaint is fallacious. Would the man from HR be committing a criminal offence if he did not tell the first complainant that now doubt had been cast on the new allegation, or indeed that it was probably untrue, as the case may be? To what extent is the HR person, or anyone in the management chain, under a personal legal obligation to tell his boss, tell the other complainant, tell the accused, or even to take immediate steps to halt any proceedings based upon the false allegation?

I'm not sure whether you meant this was a general obligation on anyone furthering the complaint, or special to the first person told. It sounds as though whatever the companies procedures, everyone has a duty to ignore those procedures and simply discontinue any action in progress, on pain of committing a criminal offence if they do not, if they have reason to believe the complaint false.

[bluebottle]

Re: alleged assault, forthcoming disciplinary

So here is a scenario. The HR department has a complaint on the books which the complainant has refused to make formal. Another complaint arrives, and HR tell the first complainant that now he has done it again, so the first complainant must also complain, which he does. Then HR come into possession of some new evidence which suggests the second complaint is fallacious. Would the man from HR be committing a criminal offence if he did not tell the first complainant that now doubt had been cast on the new allegation, or indeed that it was probably untrue, as the case may be? To what extent is the HR person, or anyone in the management chain, under a personal legal obligation to tell his boss, tell the other complainant, tell the accused, or even to take immediate steps to halt any proceedings based upon the false allegation?

I'm not sure whether you meant this was a general obligation on anyone furthering the complaint, or special to the first person told. It sounds as though whatever the companies procedures, everyone has a duty to ignore those procedures and simply discontinue any action in progress, on pain of committing a criminal offence if they do not, if they have reason to believe the complaint false.

It all very much depends on the circumstances of each case. Generally speaking, a person is entitled to go about their daily life and business without others making false, malicious or vindictive allegations against them. And to this end, the law provides protections and remedies to deal with this.

A person with a grievance or complaint cannot be coerced or forced into formalising it unless they choose to do so of their own free will.

However, if a complaint or grievance is such that it is false and not withdrawing it would lead to someone suffering harm or loss as a result and the HR person or manager knows it is false and takes no action to prevent harm or loss being caused, then their failure to act would bring into question their motives and, potentially, give rise to liability which, depending on the nature of their motives, could be civil or criminal.

In the example you describe, commonsense should prevail. If someone makes a complaint about something that has happened to them, but is reluctant to formalise it, as long as they have been told the matter can go no further unless it is put on a formal basis, HR and management have discharged their duty to the complainant. Basically, that is as far as the matter should go.

If someone else then makes a complaint about the same thing, strictly speaking, the first complainant cannot be coerced into making a complaint also, albeit that they declined to do so previously.

However, if evidence then arises which casts doubt as to the veracity of the second complaint any disciplinary investigation or proceedings based on that complaint must be halted immediately. To continue with such investigation or proceedings knowing they are based on what is, essentially, a falsehood, is not only grossly unfair, it may also amount to harassment of the person who is the subject of the investigation or proceedings. Harassment can be both a civil tort and a criminal offence.

In the example given, an HR person or manager who came into possession of evidence that a complaint was untrue or of doubtful veracity, they would have an obligation, morally and legally, to inform the employer or a senior manager as failure to do so could expose the employer to litigation which was avoidable. Obviously, anyone who has complained must be informed that a disciplinary investigation and/or proceedings have been aborted as must the person who is accused of wrongdoing.

There are, obviously, circumstances when company policy goes flying out of the window and statutory procedures come flying in. Failure to comply with those statutory procedures may, in itself, amount to a criminal offence.

I will add to this post later as I am struggling to stay awake.

[Johnboy007]

Re: alleged assault, forthcoming disciplinary

Bluebottle is absolutely right.
If the first complainant refused to make his complaint formal, then why has the company still got it 'on their books'?
That should have been removed.
I cannot add more to what Bluebottle has stated, other than, accepted standards of disciplinary procedures, have certainly not been followed here, if what you say is true.

[sandeman]

Re: alleged assault, forthcoming disciplinary

Ah, no, that isnt quite what i meant. These things are getting complicated and i didnt make my example clear. I meant a second unrelated complaint about a similar but unrelated incident. The situation I have in mind is that details of the second incident and complaint are put to the first complainant to demonstrate that this is a person against whom action ought to be taken. He is then persuaded and agrees to take matters further. It then transpires that the second allegation is false/may be false/concerns have arisen. Does the HR person then have a legal obligation to tell the first complainant that actually they were persuaded to make the allegation on the basis of false information?

From what you have said, I think the answer would be yes. Would HR then have a duty to tell the accused person what has been going on, which obviously would affect their defence if matters continue? And then as you suggest, have a duty to halt proceedings in the second allegation at least?

If HR, knowing that an allegation was likely false, decided matters might as well go on to a disciplinary hearing and be decided there, would they be legally in the wrong? It sounds like this could become a criminal offence if police have already been involved, but otherwise would be a civil wrong of some sort?

From the perspective of someone working in HR, are they personally liable, or is their employer? Or indeed both? If the employer instructs them to continue the matter and they do so, are they compounding their own offence either criminal or a civil wrong?

You also allude to other potential pitfalls for the employer, that it might also be a criminal issue of harassment? Again, that liability might extend personally to an HR employee dealing with the case?

As to the question of whether a complainaint might be coerced into it, against their will, I dont understand. Surely, thats what coercion means, against their will. An employee might be pressurised into saying something untrue in self defence. Accused of something, which they didnt do, they say it was someone else. They do this to take the pressure off themselves, but draw back at the point of making the complaint formal, thereby hoping to protect both themselves and the other person now falsely accused. Then colleagues/bosses come along with moral pressure or new information, ie a second incident, and insist that the matter be formalised. The person is trapped, and has been trapped not by their own will, but by pressure from management. Is the complainant still guilty regardless? Is management guilty because it was their pressure which led to all this happening and a problem for the accused?

next there seems to be this law about harassment, or perhaps more than one. Is this behaviour by the employer amounting to a criminal offence either against the person pressured into making the allegation, or against the accused? (sorry if my points are overlapping)

It might be that this all forms part of something larger, where the employer has been waiting for an opportunity to take action, and then applies pressure to someone who finds himself in a vulnerable position.

[Johnboy007]

Re: alleged assault, forthcoming disciplinary

Ah, no, that isnt quite what i meant. These things are getting complicated and i didnt make my example clear. I meant a second unrelated complaint about a similar but unrelated incident. The situation I have in mind is that details of the second incident and complaint are put to the first complainant to demonstrate that this is a person against whom action ought to be taken. He is then persuaded and agrees to take matters further. It then transpires that the second allegation is false/may be false/concerns have arisen. Does the HR person then have a legal obligation to tell the first complainant that actually they were persuaded to make the allegation on the basis of false information?

From what you have said, I think the answer would be yes. Would HR then have a duty to tell the accused person what has been going on, which obviously would affect their defence if matters continue? And then as you suggest, have a duty to halt proceedings in the second allegation at least?

If HR, knowing that an allegation was likely false, decided matters might as well go on to a disciplinary hearing and be decided there, would they be legally in the wrong? It sounds like this could become a criminal offence if police have already been involved, but otherwise would be a civil wrong of some sort?

From the perspective of someone working in HR, are they personally liable, or is their employer? Or indeed both? If the employer instructs them to continue the matter and they do so, are they compounding their own offence either criminal or a civil wrong?

You also allude to other potential pitfalls for the employer, that it might also be a criminal issue of harassment? Again, that liability might extend personally to an HR employee dealing with the case?

As to the question of whether a complainaint might be coerced into it, against their will, I dont understand. Surely, thats what coercion means, against their will. An employee might be pressurised into saying something untrue in self defence. Accused of something, which they didnt do, they say it was someone else. They do this to take the pressure off themselves, but draw back at the point of making the complaint formal, thereby hoping to protect both themselves and the other person now falsely accused. Then colleagues/bosses come along with moral pressure or new information, ie a second incident, and insist that the matter be formalised. The person is trapped, and has been trapped not by their own will, but by pressure from management. Is the complainant still guilty regardless? Is management guilty because it was their pressure which led to all this happening and a problem for the accused?

next there seems to be this law about harassment, or perhaps more than one. Is this behaviour by the employer amounting to a criminal offence either against the person pressured into making the allegation, or against the accused? (sorry if my points are overlapping)

It might be that this all forms part of something larger, where the employer has been waiting for an opportunity to take action, and then applies pressure to someone who finds himself in a vulnerable position.

I think HR would do better if they dropped the whole thing.
Firstly HR are bang out of order in telling first complainant any details what-so-ever, of any other allegations from a third party.
This is a breach of trust between HR and third party for a start.
If the allegations from third party turn out to be false. Then HR should not pursue the matter any further.
They are at best, leaving themselves open to civil/legal proceedings.
The first complainant would be well advised to withdraw any statement made to HR.
Do this before any hearing,or before the statement is made generally known.
Example:
In view of new evidence received by myself.
I (name) wish to withdraw the statement, dated (date) made to Mr (?).
I do not consent for this statement to be used or be made known to anyone.
Signed..

[sandeman]

Re: alleged assault, forthcoming disciplinary

seems to me that could get just a little ticklish....in view of new evidence received by me that he did not hit me, i wish to withdraw my allegation that he did?

How would an employer react to that, being rather an admission of lying about making a false complaint?

[Johnboy007]

Re: alleged assault, forthcoming disciplinary

seems to me that could get just a little ticklish....in view of new evidence received by me that he did not hit me, i wish to withdraw my allegation that he did?

How would an employer react to that, being rather an admission of lying about making a false complaint?

Yeah, it would be good to see the looks on their faces..........
I'm sorry for the confusion....
Forget in view of new evidence.
Add;
On reflection, concerning the statement made by me to (whoever), on (date)
I now wish to withdraw that statement.
I do not consent for this statement to be used in any way, or be made known to anyone in the future.
Signed .........

[wales01man]

Re: alleged assault, forthcoming disciplinary

Did anyone get assaulted or is it all nonsense? For some reason it looks like someone is telling stories in order to gain something whatever that is.
If its a genuine assault go to the Police they are trained to deal with this

[bluebottle]

Re: alleged assault, forthcoming disciplinary

It seems that while I was writing War and Peace, JB beat me to it with some very practical and down-to-earth advice. What he has suggested covers most things and should management or HR decide to behave like tits, they have been given fair warning.