Should employers report child protection concerns or allegations of domestic violence involving an employee?
Dealing with an employee who may be a perpetrator of violence or abuse.
Working from home on a more regular basis has meant that many of us know more about our colleagues’ home lives than ever before. Much of this has been positive and enabled employers to empathise with the challenging family situations employees have encountered over the last two years. But it has perhaps also made more likely that allegations involving abuse of family members by an employee will come to the attention of an employer. What should an employer do when allegations of this kind arise?
Follow your organisation’s safeguarding policies and any statutory guidance
Organisations that work with children and vulnerable people will have their own safeguarding policies and procedures based on statutory guidance, such as Working Together to Safeguard Children and Keeping Children Safe in Education. It is important that all colleagues are aware of the steps they should take when safeguarding concerns arise. In particular, they should know who to report their concerns to internally so that a referral decision can be made.
Follow any internal safeguarding policies and procedures, including considering whether the allegations meet the threshold for reporting a regulator, social services or the Local Authority Designated Officer.
Charities should also take advice on whether the circumstances might warrant a serious incident report to the Charity Commission.
Is there an immediate threat of harm?
If employers have serious concerns that the employee or another person is at risk of immediate harm, they should contact the police and/or another relevant agency, such as social services.
In most cases there is no legal duty to report to social services or the police
Even in regulated sectors such as education and adult social services, there is no positive legal duty to report concerns of abuse or criminal conduct, although organisations and the professionals working within them must have regard to the relevant statutory guidance.
The only exception to this is that those working in schools, healthcare and social care have a legal duty to report suspected cases of female genital mutilation.
Reporting “frivolous” allegations to the police can be a breach of trust and confidence
Case law indicates that an employer who refers “suspect” or “frivolous” allegations to the police could breach the implied term of mutual trust and confidence by doing so.
Police investigation and/or criminal proceedings are likely to cause serious damage to the reputation of an employee, particularly one working in a regulated sector. If the employee were to resign and bring a constructive dismissal claim, a tribunal might find that the employer had made the report without good reason and could feasibly award significant compensation if it determined that the employee’s earning potential was permanently affected by reputational damage.
Employers should therefore very carefully consider whether the allegations are likely to amount to criminal behaviour and whether there is good reason to report them to the police.
Advice for employers on domestic abuse
In June 2021, an updated Domestic abuse: a toolkit for employers was jointly published by Public Health England and Business in the Community (BITC).
This toolkit provides very useful guidance for employers on dealing with the difficult issue of suspected domestic abuse where it involves employees. As well as providing guidance for employers who believe their employees are victims of abuse, the toolkit also provides advice where employees are suspected perpetrators of abuse. For example, employers are encouraged to have a policy on domestic abuse which is actively promoted, to work alongside specialist agencies to reduce risk to family members and employees, and to be very careful about sharing information with the perpetrator where this may increase risk to others.
Should we commence a disciplinary investigation into the employee’s private life?
In answering this question, employers will need to consider whether the allegations in question have an impact on the employee’s role, the individuals they work with, or the employer’s organisation (for example the employer’s reputation or relationships with third parties).
If such an impact is likely, the employer should carry out an initial investigation. Where the police or another agency are involved, the employer should ask for relevant information which can be shared about the case, and seek their views on carrying out an internal process. In some cases, the police may ask the employer to delay any such process, or even not to raise the allegations with the employee, so as not to prejudice the police investigation.
The findings of an initial investigation may lead the employer to consider suspending the employee where there are unacceptable risks to colleagues, service users or other individuals, or to the integrity of the investigation, if the employee remains active in their role. However, this should be based on specific identified risks and should not be an automatic reaction. Alternatives to suspension should be explored, such as making temporary changes to the role or increasing supervision.
There may be cases where it is not necessary to commence an internal investigation and disciplinary process if the allegations have no impact on the employee's role or the employer organisation.
For further detail on dealing with cases where police investigations overlap with internal proceedings in a schools context, please see our previous article: Dealing with School Employees who are being Investigated by the Police (available from our website).
Dismissal for reputational damage arising from employee’s private life
The case of Q v Secretary of State for Justice provides helpful guidance for employers undertaking disciplinary procedures linked to child abuse allegations.
In this case, it was alleged that a probation officer had put her own child at risk, and that she had failed to inform her employer of a child protection plan after receiving a disciplinary warning and being instructed to keep the employer up to date.
In this case, the employer’s safeguarding obligations and the likelihood of damage to the employer’s reputation, particularly with the local authority as its statutory safeguarding partner, were key to the EAT’s decision that the dismissal was fair and that the employer’s interference with the employee’s right to a private life had been lawful.
For further detail, please see our article from February 2020: Was a Dismissal for Failing to Disclose the Employee's own Safeguarding risk to her Child Unfair and in Breach of Human Rights (available from our website).
Reporting following a disciplinary decision
Where a disciplinary process concludes that safeguarding or abuse allegations are more likely than not to be true, the employer may need to reconsider whether it should report the matter to an external agency.
For those working in regulated activity, such as education or care for vulnerable people, there is a statutory duty to refer the matter to the Disclosure and Barring Service (DBS) in some circumstances.
This duty arises where the employee has been dismissed or removed from regulated activity (or would have been if they had not resigned) and the employer believes that their conduct has endangered or is likely to endanger a child or a vulnerable adult; or that there is a risk of harm to a child or vulnerable adult; or that they have been cautioned or convicted of a relevant offence.
Someone who is subject to the duty to refer and fails to do so without reasonable justification commits a criminal offence and can face a fine of up to £5,000.
Organisations working in regulated activity can also make referrals to the DBS where the legal duty to do so does not arise, for example where there is insufficient evidence to lead to dismissal, but concerns persist. However, for the reasons set out above, employers should take legal advice before doing so as there are employment law risks in making a referral where there is no legal duty to do so.
Organisations should refer to DBS Guidance on Making Barring Referrals for more information.
Employers working in regulated sectors should also consider any separate obligations to refer cases to the relevant regulator.
How Wrigleys can help
The employment team at Wrigleys is expert in helping charities and education sector clients with complex employee relations issues, including allegations concerning conduct outside of work and liaison with external agencies.
We can help by reviewing your disciplinary and safeguarding policies and procedures so that concerns are dealt with in line with statutory requirements and employment tribunal claims are less likely to arise.
Importantly, we work within the wider charities, social economy, and education teams at Wrigleys and so we also have in-depth understanding of how our clients’ governance and regulatory obligations impact on employment processes and decisions. Our CSE team can further help to minimise your risks by providing advice on charity law, trustee and director duties and delegation of powers, reporting to the regulator, and reputational risk.
If you would like to discuss any aspect of this article further, please contact Alacoque Marvin or any other member of the employment team on 0113 244 6100.
You can also keep up to date by following Wrigleys employment team on Twitter
The information in this article is necessarily of a general nature. The law stated is correct at the date (stated above) this article was first posted to our website. Specific advice should be sought for specific situations. If you have any queries or need any legal advice please feel free to contact Wrigleys Solicitors.