I have recently been undertaking an investigation and disciplinary process into the conduct of an employee. During one of the investigations I had cause to speak to a different employee, who was uncooperative in a meeting and, it later materialised, had deliberately lied to the investigative panel to protect the employee in question. This was well substantiated by others. Later the individual admitted this conduct and said openly that with hindsight he would take the same action again.
The local authority has a code of conduct that clearly states that employees will act with integrity and honesty at all times. I am considering that this deliberate action could potentially (not to pre-empt the disciplinary outcome) be tantamount to gross misconduct. Could you please advise on this situation? The employee is still at work and is aware that I will be inviting him to a disciplinary hearing next week.
The employee deliberately lied to the employer to protect another individual who has done something wrong. As such, the question of whether or not to take disciplinary action is without question – you are obliged to take action and respond appropriately to this breach of local authority policy.
However, the severity of the action will depend on the context applicable in this case. For example, if the lie that the employee told was to protect another employee from rightly being called to account for bullying, stealing or discrimination, then it could arguably be regarded quite properly as gross misconduct. In cases of gross misconduct summary dismissal is one of the options available to employers.
On the other hand if the issue under investigation was minor then such a drastic outcome may not be within the band of reasonable responses open to you and alternative, more lenient, responses may be far more appropriate.
In particular, the alternative may be to issue a final warning. When faced with such decisions it can be a good idea to pause to consider whether a final warning would be sufficient and reasonable under the circumstances, as opposed to summary dismissal.
Separately, I have received a request for a reference for this employee – do I have to make mention of this in the reference? And can I refuse to provide a reference?
Unless there is a contractual obligation to do so, an employer is under no legal duty to provide an employee or ex-employee with a reference. Should you decide to provide a reference, it must be true and accurate. Having stated this, however, the reference does not have to be full and comprehensive in every case. An employer should not make reference to a matter that has not been put to the employee. Failure to provide a fair reference, if you decided to do so, may amount to a breach of the implied duty of trust and confidence, in turn entitling the employee to resign and claim constructive dismissal.
The employers also owe a duty to the prospective new employer not to give misleading information.
The Equality Act 2010:
The main purpose of the Equality Act 2010 is to harmonise and strengthen the previous law on discrimination to promote equality and provide a simpler, more consistent framework for the effective prevention of discrimination.
The Act aims to promote equality by extending the definition of direct and indirect discrimination, harassment and victimisation, and introducing new concepts including discrimination arising from a disability and the power for employment tribunals to make recommendations that benefit an employer’s wider workforce. It is worthwhile reading through this significant legislation, as ignorance is no defence.