Who’d be a Whistle Blower?
It is not uncommon for a suspect to be told about any allegations for the first time at an impromptu meeting, or “chat”, with a manager or member of HR. This leaves little, or often no, time to prepare. But any account given is crucial and can have wide ranging implications.
In this blog, we address what you should do to prepare if you are given advanced warning. If that meeting has already taken place, we explain what you should do next. We also consider implications for regulated professionals, including the rights and obligations for you and your organisation in situations involving sexual misconduct allegations.
Complaints commonly include some or all of the following: allegations of sexual assault or harassment; allegations where a workplace relationship has gone awry and/or there is an imbalance of power or status; discrimination; harassment; and allegations involving consent – whether it was informed, understood or freely given. In these situations, the risks associated with a possible criminal complaint being made to the police should be considered at an early stage.
This is incredibly important. Any account you give to your employer may be admissible in any subsequent criminal and/or regulatory process. You and your advisors will need to consider the potential risks and benefits of any disclosure or account you make in any internal process very carefully. Considerations may include:
It is not uncommon to be taken by surprise by being invited to a meeting on very short (or even no) notice to discuss the allegations. At that meeting, you might be given a summary of allegations, or provided with other new information, or you might be asked to provide your own account. It is perhaps human nature to feel pressure to respond to the allegations and/or any questions to some extent or to deny them, for fear of being seen to otherwise agree. The difficulty is that you are unlikely to be thinking clearly. You will be faced with allegations which may have life-changing consequences yet at this first stage, you are extremely unlikely to be presented with all the information your employer holds. It is therefore very difficult for you to provide a full and accurate account of events which, if they occurred, may have been fleeting or historic.
It is important to remember that even if your employer tells you the conversation is “informal” or “not part of a formal process/investigation”, you may subsequently be asked to account for anything you say at this stage. It is also important to consider how the meeting is being recorded: are contemporaneous notes being taken and will you be given the opportunity to consider and/or agree the note? The answer to this question may affect your decision as to whether to engage (at that stage) or not. If you do engage, you may face a suggestion that your account is as contained within the note and any changes to your evidence will need to be explained: either to your employer or as part of a criminal or regulatory investigation. It can also call into question your credibility.
A judgment call needs to be made as to whether engaging in the process at this early stage will actually assist in maximising the prospects of keeping your job and/or clearing your name. Unfortunately, this is not something that can properly be assessed there and then, when so many potential factors are at play.
A better approach can be to listen, gather as much information as possible, and then if appropriate say that you need some time for this to sink in before saying any more. You should ask for the allegations or the terms of suspension (if any) to be provided to you in writing. Do not be alarmed if your employer suggests that you seek legal advice.
If you have provided answers verbally, write down what you were asked and what you said while it is fresh in your mind. It is important that you are able to provide your legal team with any details that you have provided to date. This will assist your advisors in deciding the extent to which you should participate in any subsequent process.
Your legal rights regarding the process that must be followed, and your potential options if they are not complied with, will depend upon whether you are an employee or partner/member. In either case, at the outset there is likely to be an initial meeting where the allegations are set out. Be prepared for the fact that in the context of a workplace allegation, it is likely that you will be suspended while the investigation is conducted.
If you are an employee with 2 years’ or more continuous service, you will have protection against unfair dismissal. In simple terms, this means that in order for your employer to dismiss you for misconduct, they must follow a fair process. Any the decision to dismiss you must also be reasonable in the circumstances. This does not necessarily mean that your employer has an obligation to wait for any related criminal process to be completed before proceeding.
If you are a partner or member of an LLP, you will not have the same rights as an employee. The Partnership or LLP Deed, and any other contractual documentation you may have, will be key to understanding the requirements of any process and the circumstances in which you can be required to leave. For example, is there any power to suspend you and what is the process and voting threshold for you to be expelled?
If you are a regulated individual and/or the organisation is regulated (for example by the Solicitor’s Regulation Authority (“SRA”) or the Financial Conduct Authority (“FCA”)), then you will also need to be mindful of the organisation’s obligations to its regulator and how it will impact upon you, and your own regulatory obligations. For example, the SRA has a memorandum of understanding (“MOU”) with the (then) Association of Chief Police Officers of England and Wales (“ACPO”). The MOU operates on a voluntary, good faith, basis but contains a provision for the SRA to disclose information to ACPO (now, the National Police Chief’s Council) so that, inter alia, alleged criminality, or other failures are properly investigated and decided upon.
The first account you provide as part of a workplace investigation into alleged sexual misconduct is incredibly important and can “set the tone” for any process that may follow. The implications of the information you provide can be wide ranging. For that reason, it is vital to seek expert advice at the earliest opportunity so that employment, criminal and regulatory implications can be considered in tandem for the best outcome. The current climate means that these cases can attract significant media interest with hard-earned reputations traduced before any findings have been made. Therefore, it is more important than ever to ensure that your advisors work hand-in-hand with reputation management specialists throughout the life of the matter.
If you have any questions about the issues raised in this blog, please contact a member of our team.
Our unrivalled experience in dealing with some of the highest profile and most sensitive cases involving sexual allegations in the workplace enables us to provide expert advice and support when clients need it most.
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