Colleague admitted to assault - can I whistleblow?

[muriel]

Re: Colleague admitted to assault - can I whistleblow?

I know you're concerned about disclosing details. Not every touch is assault/ ABH etc. Can you just say the key words - not necessarily a full sentence - of what you believe is a crime? If it's in writing, it's proof under criminal law rules (well public law, if we're being technical). Make sure you cover yourself before you attempt to make a protected disclosure.

The colleague shoved me really hard and called me racist names. The colleague is denying racially aggravated assault (but that is what the police are treating it as), but did not deny shoving me.

[Openlaw15]

Re: Colleague admitted to assault - can I whistleblow?

I would not do it for my own personal gain, but from a point of view of a concerned professional.



I do believe that the crime has been committed.

The only witness regarding the assault is myself and my colleague who admitted to it to our manager and this has been recorded in writing. I have no other evidence.

There could be an issue with the problem/ crime occurring outside of work, as this is what the employer's lawyer will likely argue and therefore, in his lawyer's view anyway, is not a protected disclosure. Said law just says 'worker' and does not mention 'employment environment' so seemingly even crimes occurring away from employment is covered under the whistle-blower law. I am not a lawyer though I have just provided by opinion generally as a guide.

I know you're concerned about disclosing details. Not every touch is assault/ ABH etc. Can you just say the key words - not necessarily a full sentence - of what you believe is a crime? If it's in writing, it's proof under criminal law rules (well public law, if we're being technical). Make sure you cover yourself before you attempt to make a protected disclosure.

[muriel]

Re: Colleague admitted to assault - can I whistleblow?

It's not just the crime itself, you can make a protected disclosure for 'health and safety reasons too, as cited above. Health and safety includes 'vulnerable persons.' To whom would you want to make the disclosure (whistle-blow), to? You could report to the Health and Safety Executive for instance or other 'responsible person.' You cannot however just do it for malicious reasons or for your own personal gain itself.

I would not do it for my own personal gain, but from a point of view of a concerned professional.

Well the definition of a crime in this situation is 'possibly' common assault and battery, ie Actual Bodily Harm, as Desm enquires. What type of crime in your view has been committed and what evidence do you have. When someone admits to a criminal offence it's generally hearsay under the hearsay rules', meaning it's permitted in court as 'evidence.' Once you've established these things, you require a 'reasonable belief' that a crime has been committed or is likely to be committed in the future.

I do believe that the crime has been committed.

The only witness regarding the assault is myself and my colleague who admitted to it to our manager and this has been recorded in writing. I have no other evidence.

[Openlaw15]

Re: Colleague admitted to assault - can I whistleblow?

Thank you, Openlaw15.

Am I right thinking that since the police investigation is still ongoing, there is no "crime" at the moment, but merely a self admission?

It's not just the crime itself, you can make a protected disclosure for 'health and safety reasons too, as cited above. Health and safety includes 'vulnerable persons.' To whom would you want to make the disclosure (whistle-blow), to? You could report to the Health and Safety Executive for instance or other 'responsible person.' You cannot however just do it for malicious reasons or for your own personal gain itself.

Well the definition of a crime in this situation is 'possibly' common assault and battery, ie Actual Bodily Harm, as Desm enquires. What type of crime in your view has been committed and what evidence do you have. When someone admits to a criminal offence it's generally hearsay under the hearsay rules', meaning it's permitted in court as 'evidence.' Once you've established these things, you require a 'reasonable belief' that a crime has been committed or is likely to be committed in the future.

[muriel]

Re: Colleague admitted to assault - can I whistleblow?

A crime is serious type of 'public interest' so yes in general it would be a protected disclosure. Let's look at the wording first of all for the 'confidentiality clause' as it may not be sufficient to cover a criminal offence/ investigation, where working with the vulnerable. Here's ACAS views on it: http://www.acas.org.uk/index.aspx?articleid=1919

Thank you, Openlaw15.

Am I right thinking that since the police investigation is still ongoing, there is no "crime" at the moment, but merely a self admission?

[Openlaw15]

Re: Colleague admitted to assault - can I whistleblow?

Hello all,

A colleague admitted to assaulting me to our manager. The colleague has not been suspended and no action was taken. Police investigation is ongoing.

The colleague works with vulnerable people and I am concerned that the employer is putting them at risk since the colleague has a tendency to be violent.

Would this classify as a Protected Disclosure to whistle blow or am I getting it completely wrong?

Answering your first question, a protected disclosure over-rides a confidentiality agreement/ clause itself owing to the 'public interest:' section 43J (1), Public Interest Disclosure Act 1998.

Said disclosure can be made where the employee/ worker has a 'reasonable belief' that "a criminal offence has been committed, is being committed or is likely to be committed:" s. 43J (1 (a)), PIDA 1998;

Or, "(d) that the health or safety of any individual has been, is being or is likely to be endangered:" s. 43J (1 (d))

In general: A crime is serious type of 'public interest' so yes in general it would be a protected disclosure. Let's look at the wording first of all for the 'confidentiality clause' as it may not be sufficient to cover a criminal offence/ investigation anyway, where working with the vulnerable. Here's ACAS views on 'confidentiality clauses: http://www.acas.org.uk/index.aspx?articleid=1919

[muriel]

Re: Colleague admitted to assault - can I whistleblow?

As the assault against you is a matter of record, IMO there is no reason why you should not discuss with your employer the implications of that assault.
The fact of the violence alone could allow you to raise your concerns with your employer without necessarily referring to other evidence of his tendency to violence.
You have already raised concerns about his bullying, so why should you not ask what your employer is doing to ensure both your and his clients safety.

This would not be whistleblowing but seeking reassurance.

I have written an email to my manager and all I was told is that they cannot tell me what action is being taken because it's confidential.

I would love to have faith in the process, but it seems wrong that someone who admitted to having assaulted me is still able to work with vulnerable people.

I'm assuming my next step is to wait patiently for the outcome of the police investigation. Even police caution means a struck off in my profession.

[des8]

Re: Colleague admitted to assault - can I whistleblow?

As the assault against you is a matter of record, IMO there is no reason why you should not discuss with your employer the implications of that assault.
The fact of the violence alone could allow you to raise your concerns with your employer without necessarily referring to other evidence of his tendency to violence.
You have already raised concerns about his bullying, so why should you not ask what your employer is doing to ensure both your and his clients safety.

This would not be whistleblowing but seeking reassurance.

[muriel]

Re: Colleague admitted to assault - can I whistleblow?

What was the degree of assault you sustained?
Did it include Battery or Actual Bodily Harm?

You say he "has a tendency to violence"
How are you aware of this and could you provide evidence?

If the assault was minor, your employer might not regard him as a risk to his clients, and if you can't substantiate your concerns reporting them might be seen as malicious. (especially as you had not reported your concerns prior to the assault on yourself)

IMO you should at least await the outcome of the police investigation

Thank you des8.

It did not include battery or ABH. The colleague has been violent in the past, but the person is not willing to come forward, only spoke to me off the record.

I have reported some concerns prior to the assault, but they were not related to the colleague being violent, but only a bully and behaving out of character.

- - - Updated - - -

Was the assault on you carried out whilst at work?

No. After work.

[des8]

Re: Colleague admitted to assault - can I whistleblow?

Was the assault on you carried out whilst at work?

[muriel]

Re: Colleague admitted to assault - can I whistleblow?

Thank you for the reply.

I'm hoping there must be a good reason for not suspending the colleague, although I fail to see it. Can staff shortage be a good reason? What else could be a good excuse for not suspending someone who admitted to an assault on a colleague.

Also, bearing in mind what you wrote about a good faith disclosure, I am worried that I will not be able to demonstrate that the disclosure was not tainted with personal antagonism if I was the victim of the assault.

Completely confused and powerless.

[des8]

Re: Colleague admitted to assault - can I whistleblow?

What was the degree of assault you sustained?
Did it include Battery or Actual Bodily Harm?

You say he "has a tendency to violence"
How are you aware of this and could you provide evidence?

If the assault was minor, your employer might not regard him as a risk to his clients, and if you can't substantiate your concerns reporting them might be seen as malicious. (especially as you had not reported your concerns prior to the assault on yourself)

IMO you should at least await the outcome of the police investigation

[charitynjw]

Re: Colleague admitted to assault - can I whistleblow?

Hi muriel & welcome to LB.

Protected disclosures are covered as long as the 'qualifying disclosure' is made to the correct person in the correct way.
The rules are fairly complicated, & there has been a lot of case law, so it is difficult to generalise. However, the disclosure must be made in good faith. It mustn't be tainted with personal antagonism.

Has the employer just turned a blind eye, or is there some good reason why, despite your colleague's admission, no action has been taken by the employer?
Surely if the police investigation amounts to anything, given the nature of the job the colleague would have to leave or be dismissed?

[Kati]

Re: Colleague admitted to assault - can I whistleblow?

[MENTION=39710]des8[/MENTION]? [MENTION=77627]Openlaw15[/MENTION]?

[nemesis45]

Re: Colleague admitted to assault - can I whistleblow?

Hello all,

A colleague admitted to assaulting me to our manager. The colleague has not been suspended and no action was taken. Police investigation is ongoing.

The colleague works with vulnerable people and I am concerned that the employer is putting them at risk since the colleague has a tendency to be violent.

Would this classify as a Protected Disclosure to whistle blow or am I getting it completely wrong?

Good evening, welcome to LB .


Not my area of expertise to get help for you.
[MENTION=49370]Kati[/MENTION] anyone to tag for this please.

nemxx