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Conducting a Fair Investigation While Considering Employee Health Issues

  • 07 Pages
  • Published On: 05-12-2023
Introduction

The current case involves determining whether or not investigation is necessary and if required, the preparation needed for the investigation and the manner of conducting the investigation.

The advice would involve the necessary consideration that James must have in regard to the equal treatment, avoiding discriminatory treatment given that Adam is on leave due to his health issues.

Why the Equality Act 2010 applies in this case?

The Equality Act 2010 has consolidated much of the law on discrimination. Section 4 provides the protected characteristics that includes disability. According to this Act of 2010, s6(1) a person has a disability if they have a physical impairment, which causes a substantial and long term adverse effect on their ability to carry out the normal day-to-day activities. In Lofty v Hamis (t/a First Café), the Employment Appeal Tribunal held that a ‘pre-cancerous’ form of skin cancer was a disability as it potentially falls within the Equality Act 2010, Schedule 1, paragraph 6 that deems cancer to be a disability. Hence, in the current case, since Adam has been diagnosed with cancer, he will be treated as a person with physical impairment, which will substantially and adversely affect him while carrying out his normal day-to-day activities. According to ACAS on disability discrimination, it is not necessary to show that Adam’s condition is substantial and has a long-term adverse effect as he is diagnosed with cancer.

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The Act of 2010 will not allow James’s company to conduct any activities that causes direct or indirect discrimination, victimisation or harassment. Section 15(1) prohibits discriminating against Adam if he treats him unfavourably due to Adam’s physical disability or something arising out of his disability and such treatment is not proportionate to the legitimate aim. However, in case Adam is dismissed, the dismissal must be for a legitimate aim.

The ACAS rules must be followed in order to facilitate making key decisions and actions regarding investigation. The later sections will lay out the necessary steps in regard to an investigation.

Whether or not an investigation is necessary?

The facts of the case shows that James spoke with Adam about the issue of breach of the company confidentiality policy, but Adam became agitated. This attempt to address the issue in the first instance with quiet word did not yield any result. Adam has informed James that he is diagnosed with cancer and that he will need to take leaves to undergo medical treatment. As such, it would be not possible for James to address the issue. In such scenario, according to ACAS rule, if such quiet word or informal action involving Adam does not resolve the matter, or is not possible, such as in this case, James must consider various factors deciding whether or not an investigation is necessary.

Firstly, James must determine whether or not any of his company’s policy requires for a formal investigation in the issues in question. For example, if the policy says that all reported incidence of breach of company databases must be investigated, James is under an obligation to conduct an investigation.

Secondly, even when James is not under any obligation to conduct the investigation, if the issue is such that it is serious, it will warrant further action. For example, if the company’s policy does not clearly lay out the approach to handling breach of company’s database, such as in the current case, as the issue is serious, it will warrant a further action.

Thirdly, James must also consider whether a preliminary investigation will help to address the issue when there is uncertainties as to whether or not a full investigation is needed or appropriate. In such uncertainties, James may benefit from trying to find it first by gathering relevant appropriate evidence.

The current issue involves a serious breach of the company policy arising from number of accesses, including all the team members, to the company's database and download of the full list of clients to an external hard drive. In such case, a preliminary investigation can help James gather data on the unauthorised accesses and download and could also determine whether this practice is followed generally that it requires a further full investigation.

If the preliminary investigation shows that a full an investigation is necessary, then James should promptly act as otherwise it would be difficult to recall the right memories or conduct a fair process. At any stage of the investigation, James must always consider an informal resolution of the issue.

Investigation plan must consider the well-being of the employees

While conduction an investigation, James must consider the health and well-being of staff involved, including Adam. Generally, the preparation includes an investigation plan citing the time frame, issues to be addressed, persons to be completed, evidence to be collected and any other consideration, such as in this case Adam’s medical leave. James must understand that an investigation may prove stressful for the employees identified to be investigated. It can cause distress or may negatively impact the employees’ mental health. In such case, James must treat any such relevant issues seriously.

In this case, Adam is diagnosed with cancer. Any investigation has a potential of causing him distress. Therefore, it might be appropriate for James to seek professional medical help or guidance to plan the manner of investigation in a fair manner considering and recognising the impact the investigation process on Adam’s mental health. In such scenario, James must ensure that Adam can seek support through the company’s employee assistance programme, mental health first aiders, local GP or doctor or a mental health charity. To further provide support to Adam, James must ensure that the investigator liaise with Adam’s line manager in order to regularly check up on Adam’s health status and provide further support if needed.

Along with the necessary measure to ensure the well-being of Adam, James must ensure that Adam is well informed in writing of the issue in hand and that an investigation will take place. However, James may be able to conceal the investigation only when he has a good reason to do so. This is because the identified employees to be investigated, including Adam may influence witnesses or tamper with evidence. In this case, James has suspicion that Adam may be involved in the breach of the company’s policy regarding security and confidentiality of the relevant database. This is a serious breach and so, James could find this a good reason to conceal from Adam. In such case, James can collect the laptop and other devices that Adam uses for performing his job and can notify him later after doing so.

Right to equality to comply while handling investigation

While handling an investigation meeting, James must understand that an investigation meeting is not a disciplinary meeting. A separate meeting must be arrange for disciplinary action, when or if it is required. An investigation meeting is conducted in order to interview the relevant employees and gather information on the issue under investigation.

In such investigation meeting, the employees, including Adam may have not a statutory rights to have somebody accompany the, James and his company may allow it under the Equality Act 2010. As seen earlier, because of Adam’s health condition, he will be treated as a disabled worker. As such, a reasonable adjustment could be made for him. Such adjustment may include allowing Adam a personal friend or family member to accompany him if it is considered reasonable in the circumstances. It would be ‘reasonable’ if the adjustment would remove or reduce the disadvantage for Adam and would be practical. Such arrangement will be helpful for Adam in respect to company’s responsibility to support employees’ well-being considering that an investigation can be stressful.

The measure of reasonable adjustment will come under the anti-discrimination law. Section 20 of the Equality Act 2010 provides for this measures. Section 20(3) requires James to take reasonable to avoid disadvantage to Adam. The investigation will put Adam under a substantial disadvantage in relation to the investigation procedure as compared with other employees who are not disabled. Adam is diagnosed with cancer and is on a medical leave. Attending the procedures in investigation will put him under stress and physical discomfort. Hence, in order to avoid any issues of inequalities or discrimination, reasonable adjustment, such as permitting allowing somebody to accompany him, will ensure James comply with the necessary laws.

ACAS rules require that if an employee is too sick to attend, the investigator will look at all other evidence before making a reasonable decision, including the seriousness of the issue or getting a medical opinion regarding employees’ fitness to attend an investigation meeting with their permission. In case, the investigation needs to be carried out without the employee, an employer must carry out the investigation in the fairest possible manner and inform the employee.

Not to unfairly dismiss Adam or discriminate against him during investigation

The Employment Rights Act 1996, 94(1) provides Adam the right not to be unfairly dismissed. It is for James to show that if Adam is dismissed, his dismissal is fair by showing the reason (Section 98(1)(a)), which could be his conduct Section 98(2)(b), which justifies the dismissal Section 98(1)(b). Section 98(4) provides that whether or not a dismissal is fair or unfair depends on whether an employer acted reasonably or unreasonably while treating the reason of dismissal as sufficient subject to equity and the substantial merit of the issue in hand. Further, as per Section 35(2) of the Employment Act 2002, James and his company must have a procedure in place regarding decisions of dismissing employees and such procedure must be accessible to Adam.

The landmark case of British Home Stores Ltd v Burchell, sets out the test, popularly known as the ‘Burchell test’ where Employment Tribunals can employ it to determine whether or not employers have acted reasonably in dismissing an employee for misconduct and capability issues. According to this test, James must have a genuine belief that Adam is guilty and such belief must be based on the reasonable grounds and after a reasonable investigation. There should be a notification to Adam about a first hearing, the first hearing, and access to appeal, which all ensures Adam has a fair hearing. This procedure is included in the ACAS Code of Practice on Dismissal and Disciplinary Procedure, 2004. Adam must be given an opportunity to present his case. The hearing must be unbiased in the sense that James cannot be involved in the hearing if he has already been involved in the case.

Considering the Burchell test and the procedure of fair hearing, James must determine whether or not he has genuine belief that Adam is guilty of the alleged security and privacy breach and he has genuine grounds of his suspicion. James must ensure that a reasonable decision is made only after making a reasonable investigation.

Adam, as an employee, has also the right not to be discriminated. The Equality Act 2010 provides for discrimination arising from disability and failure to make ‘reasonable adjustments’. As seen earlier, discrimination arising from disability is provided under Section 15(1) of the Act of 2010 that prohibits James from discriminating against Adam if he treats him unfavourably. Such discrimination arises from something linked with Adam’s disability, which may be medical leave, problems with his movement or difficulties with talking, understanding or listening. Unfavourable treatment may not be discriminatory if there is ‘a proportionate means of achieving a legitimate aim’ such as good business and proportionate, appropriate and necessary actions. James must always ensure to find ways to making any actions less discriminatory. Hence, James must balance the company’s business need against the discriminatory effect on Adam and other employees affected by the investigation procedure. The more discriminatory the effect, the more difficult it is to justify its actions. Thus, James must monitor the company’s policies, procedures, rules, requirements and other arrangements tin order that there do not disproportionately and adversely affect Adam and the other employees involved in the issue in hand.

In the current case, James must ensure all necessary measures during the investigation procedures so that Adams does not feel discriminated. It is necessary for James to call Adam for meetings, which Adam may find unfavourable given his medical conditions as it is proportionate means to achieve a legitimate aim, which is determining the causes of breach of security policy. However, James must make necessary reasonable adjustments given Adam’s medical condition, as seen earlier where Adam can be permitted a personal friend or family member to accompany him, which would be a manner of making any action of the company less discriminatory.

James must ensure that there is an equality policy in place, which must be developed in consultation with the employees and other representatives of the company. This policy will be implemented through training and awareness across the board, with focus identifying areas that can cause discrimination, and steps to prevent incidence of discrimination by investigating and monitoring the measures in place.

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If James receives such grievance complaint from Adam arising from situations surrounding the investigation, James must follow minimum ACAS procedures. In regard to safeguarding the Adam, James must have an open mind given that a discrimination situation is individual and the perception may change from person to person or over time. James must be empathetic and be respectful and investigate the matter to gather evidence and consider the protected characteristics provided under the Equality Act 2010.

James may also temporarily suspend Adam during the time the investigation on the alleged discrimination takes place if there is a risks to the company’s property or there may be complete breakdown of the relationship. James must handle the investigation following the company’s grievance procedure in a formal manner keeping regard to the confidentiality obligation. He may consider having a mediation process in order that there is no such discrimination incidence in future.

Conclusion

In the current case, James must note that Adam be treated as a person with physical impairment as he is diagnosed with cancer. Hence, any measures to investigate the issues in hand must comply with the equality protection provided by the Equality Act 2010.

Given the facts of the case, an investigation is necessary to address the security breaches. He must confirm that there is a policy requiring a formal investigation in relevance with the case. Even not, the issue is serious and so an investigation is required. The next thing is to start a preliminary investigation to gather data on the unauthorised accesses. This will confirm, as is shown by the facts of the case, that the unauthorised access is common found that calls for a full investigation.

Any action taken by the company must have a reasonable ground for doing so, including showing a legitimate business means proportionate to the purpose of the actions. Thus, investigation measures or any actions taken must be for the purpose to verifying the security breach or identify the cause or person responsible for the breach. They must comply with rights Adam provided under relevant laws, such as the Employment Rights Act 1996, which prohibits unfair procedure or hearing. The company must follow steps required by Burchell test and no unfavourable treatment must be meted except for that is legally allowed. Any grievance complaint from Adam must be addressed following ACAS procedures.

While conducting the investigation, the company must consider the well-being of Adam and provide him with necessary professional medical help or guidance so as to conduct the investigation in a fair manner. It must follow the necessary procedure of investigation, including a formal notification of the investigation and if necessary take steps to conceal the investigation. It must ensure that the investigation complies with the equality and non-discrimination policies. As such, necessary reasonable adjustments must be made for him to avoid disadvantage to Adam. Following all the reasonable formal procedures, it would help the company in taking the decisions, whether it is dismissing or suspending Adam, or taking appropriate security measures to prevent further breaches.

Cases

British Home Stores Ltd v Burchell [1978] IRLR 379

Lofty v Hamis T/A First Cafe UKEAT/0177/17/JOJ

Legislation

The Equality Act 2010

The Employment Rights Act 1996

Books

Lockton D, Employment Law (Taylor & Francis Group 2005)

MacIntyre E, Business Law (Pearson Education Limited 2018)

Others

ACAS, ‘Disability discrimination: key points for the workplace’ (2017) accessed on 17 March 2021 .

ACAS, ‘Discrimination: What to do if it happens’ (2015) accessed on 17 March 2021

ACAS ‘Equality and discrimination: understand the basics’ (2019) accessed on 17 March 2021 < https://archive.acas.org.uk/media/4267/Equality-and-discrimination-understand-the-basics/pdf/Equality_and_discrimination_understand_the_basics_-_July_2019.pdf>

ACAS, ‘Conducting workplace investigations’ (2019) accessed on 16 March 2021 .

ACAS, ‘Investigations for discipline and grievance: step by step’ accessed on 16 March 2021

ACAS, ‘Prevent discrimination: Support equality’ (2018) accessed on 17 March 2021 “https://archive.acas.org.uk/media/4402/Prevent-discrimination-support-equality/pdf/Prevent_discrimination_June_2018.pdf>.

ACAS, ‘Reasonable adjustments’ accessed on 16 March 2021 .

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