An ex employee has made an application to the Employment tribunal on the basis that the employee was unfairly dismissed on the grounds of age discrimination. Reading the particulars of the claim, the employee implicates a senior member of staff alleging age discrimination and harassment. The Employment Tribunal is scheduled for later in the year.
Our board has requested that an investigation occurs into the circumstances surrounding the ex-employees claims. Therefore we invited the senior member of staff to a disciplinary investigation to try and ascertain the facts from this staff members point of view. The disciplinary investigation is focussed on the 3 key areas of alleged age discrimination, unfair dismissal and Harassment.
The first meeting was adjourned to allow the employee concerned the opportunity to reflect on the matters discussed and to give the employee the opportunity to provide any further evidence before any further steps were considered.
The employee has now sent the MD, who held the first meeting some concerns which I would like to know if there is some way we can address.
The employee has expressed confusion around the purpose of the meeting and felt it was about both the upcoming Tribunal and the employees disciplinary.
The employee is concerned that as the facts and evidence are yet to be tested at the tribunal so feels that the disciplinary hearing is perhaps unnecessary.
Employee is concerned we are assuming guilt by requesting evidence of innocence. In effect being asked to disprove something that may not have happened.
From the employers perspective we are trying to ascertain the facts around the case from the claimant and to investigate if their is any weight to the claimants allegations against the employee. We feel we need to do this before we can decide if any further action should be taken.
Are we going about this correctly?
Replies
Hi Jennifer, was there a fair and proper process preceding the dismissal? Did the employee appeal the decision? Was the initial matter and subsequent appeal investigated thoroughly prior to dismissal/decision being upheld? If the answer is yes to each of these questions, I don't understand why you would conduct another investigation now. Surely before the individual was dismissed these things would have come up and been thoroughly investigated before so I don't see what benefit there is in conducting an additional investigation now. The only reason you might do this is if you feel the original process wasn't conducted properly and you are assessing the merits of the case and potential success at tribunal with a view to settling. I will be online for about another hour so please feel free to come back if I've misunderstood what you were asking. KR
Madeline
Regarding the ex employee yes, we believe a fair and proper process was followed, in that the employee was consulted before original decision was made including offers of alternative employment, as the original role was redundant. An appeal was heard and investigated again but the employee could or would not offer up any evidence to support their claims at the time, so we were unable to uphold their claim.
However since the employee made the claim to the employment tribunal in the bundle of evidence given to the solicitors their is further information that has been submitted which was not submitted at either consultation or appeal.
Therefore, considering these new facts we feel compelled to investigate further. We do want to ensure the right thing is done and in the right way.
Jen
Hi Jennifer, whether you conduct an internal investigation or not at this point is probably irrelevant in terms of the outcome of the court hearing. If the Company has put all the ticks in the boxes in terms of process and reasonable outcome, you risk totally demoralising and worrying the 'accused' without substance. I would be inclined to think the tribunal would take a dim view of the ex-employee withholding information that may and would affect the Company's decision in both the original dismissal and subsequent appeal. You can, through ACAS, attempt to communicate with the individual and also challenge them introducing new information into the court bundle that they didn't share during the disciplinary process. I still feel that to conduct an investigation at this stage is a bit futile (unless the Company has grounds for wider concern around the potential bullying/discrimination claims by the employee now being subjected to investigation).
Jen
Good luck. Hope it works out well. M