Carrying out Investigations - EM LawShare

Carrying out Investigations

Stephen Pearson (Partner, Public Sector)

David Potter (Partner, Employment)

www.emlawshare.co.uk

Timings

• Introduction and background (SP) 9.45-10.00

• Investigations into employees and Statutory

officers (DP) 10-11.00

• Break

• Code of Conduct issues-how, when and what?

(SP) 11.15-12.00

• Practical Exercise 12.00-12.30

• Lunch


Background-where are we now?

• Standards Board for England Abolished in 2011

(but not in Scotland or wales)

• Requirement for LAs to have Standards

Committee revoked

• “It is the right and responsibility of the electorate

to determine who represents them … the abolition

of the regime will restore power to local people”-

was the baby thrown out with the bathwater ?

• Police have power to investigate “disclosable

pecuniary interests”


Is the current system working?

• Controversies in Rotherham, Newham, Sandwell

etc

• Challenging behaviour by members

• Unwillingness of police to investigate

• “Charismatic” leaders and mayors

https://www.google.co.uk/url?sa=i&source=images&cd=&cad=rja&uact=8&ved=2ahUKEwi-zdjYz7LbAhVsIMAKHRGtC7oQjRx6BAgBEAQ&url=https://twitter.com/borisjohnson&psig=AOvVaw1rhuGClMNAAp_0vXi51WW0&ust=1527947572011336


More results ?

• “Hire and Fire” of senior officers who do not

“deliver”

• Vulnerability of Monitoring S151 Officers

• Pressures to deliver more with less

• Grenfell tower effect?

https://www.google.co.uk/url?sa=i&source=images&cd=&cad=rja&uact=8&ved=2ahUKEwif8ND6z7LbAhUpJ8AKHagNDqQQjRx6BAgBEAQ&url=https://www.independent.co.uk/news/grenfell-tower-inquiry-fire-brigade-isaac-paolos-emergency-services-victim-a8375246.html&psig=AOvVaw2uoIl01ZjKMHPR9od62HNX&ust=1527947988187305

The Employer Investigation

David Potter


Investigating Employees

• Reason

– Disciplinary

– Grievance

– Whistle blowers

• Complexity

– Discrimination, bullying and harassment, theft, fraud and other potentially criminal

conduct

– Negligence and gross negligence

• Historic allegations

– Should you investigate them at all?

– ACAS Guidance

– Failure to investigate a complaint of discrimination may be unlawful

discrimination of itself


ACAS Guidance

“Sometimes a complaint of sexual harassment will be reported

much later than 3 months after the incident. An employer should

always take such a complaint very seriously. They should handle

things in a way that is sensitive and fair to the worker who has made

the complaint, anybody who has witnessed it and anybody who is

being accused of sexual harassment. It is usually helpful for the

worker and the employer to discuss what outcome is desired in

these circumstances – sometimes it might be that the worker now

feels confident enough to speak out and wants to make sure nobody

else in their workplace experiences what they went through”


Who should conduct the

investigation?• Internal manager or HR

• External HR consultant

• Lawyer

• Legal Privilege issues

• Interfering with the investigation

• Chhabra v West London Mental Health NHS Trust

• Ramphal v Department for Transport

• Dronsfield v University of Reading


Suspension

• A neutral act?

• Review periods

• Knee jerk reaction / Breach of trust and

confidence

• Crawford v Suffolk Mental Health Partnership

NHS Trust

• Agoreyo v Lambeth LBC


Police matters

• Obligation to report

• Delay

• Wait or proceed?

• Ali v Sovereign Buses (London) Ltd

• Secretary of State for Justice v Mansfield


Conducting the investigation

• Getting the allegations, complaints and terms of reference for the

investigation right

• Such investigation as is reasonable in all the circumstances

(Disciplinary)

• ACAS Guidance , more serious the allegation, more thorough the

level of investigation

• Profession or career at stake?

• External witnesses

• Right to be accompanied?

• Confidentiality and reluctant witnesses

• Investigation Report , findings and recommendations


Investigating statutory officers

• Head of Paid Service, S151 Officer & Monitoring

Officer– Old DIP process no longer required in England

– The Local Authorities (Standing Orders) (England) Regulations 2001 as amended

– JNC Conditions of Service for Local Authority Chief Executives

– Model Disciplinary Procedure and Guidance

– Investigating and Disciplinary Committee

– Filter issues/process

– Suspension and review

– Right to be accompanied

– Whether should be referred to an Independent Investigator . Threshold.

– Initial investigation and process

– Appointment of Independent Investigator

– Getting the Terms of Reference right

– Report of the Independent Investigator

– II holds full hearing or IDC full hearing

– Right of IDC to impose lesser or greater sanction

Code of Conduct Investigations

How, What & When

Stephen Pearson



• How?

• Mixed practice:

– PCs start their own investigation?

– MOs-best ones apply a “realistic prospect” test

– Do not proceed with complaints that are

politically motivated, “tit for tat”, repeat

complaints, vexatious, minor, already mitigated

(ie an apology), other proceedings (eg Police

action or private litigation)


Then What?

• Investigation by the MO or an investigating officer

appointed on his/her behalf

• Some authorities go straight to committee ??

• How should the investigation be conducted ?


Conduct of investigation

• When?

• How long are investigations taking?

• Good Practice exists-do you follow it ?

• Potentially challengeable process, so need to follow a

recognised procedure:

– interview witnesses and have them confirm content

of their comments

– allow subject of complaint to respond to all

allegations made against him/her

– clarify agreed and disputed matters of fact

– are there independent witnesses?


And also

• Separate out findings of fact and findings in terms of whether

there has/has not been a breach of the code

• Should the investigator give an opinion on how the complaint

should be dealt with if breach of code found?

• Treatment of personal and confidential material-GDPR! ICO

guidance re Article 6.1(e) of GDPR- “you can rely on this

lawful basis if you need to process personal data in the

exercise of official authority… or … to perform a specific

task in the public interest that is set out in law”

• Quasi-Judicial nature of committee determining complaint



• Localism Act 2011-all councils required to have a

Code of Conduct (but not in the same form)

• Code must be based on “Nolan” principles

• “Arrangements” to discharge-including use of

Independent Person

• Typically Parishes delegate up to “Principal”

Authority


What are we investigating ?

• Code is typically specific-narrower than an employment contract

• Lack of precedent from SBE

• Was the individual acting in his/her role ? What about comments

on social media?

• Was he/she in office at the time of the incident?

• What potential breaches of the code?

– failure to treat people “with respect”? Council Meeting

– which may cause council to breach equality laws-S149 EA

2010

– bringing reputation “into disrepute”-what does that mean in 21st

century?


Recent Judicial Consideration

of Conduct Investigations

• Hussain v Sandwell Metropolitan Borough Council, Court of

Appeal - Administrative Court, June 29, 2017, [2017] WLR(D)

438,[2017] EWHC 1641 (Admin)

• Alleged disposals of property at undervalues to Cllr and relative

• Pressure to cancel parking tickets

• Cllr was deputy leader-culture of Council being “open for

business”

• Council carried out investigation pre-formal investigation process.

• Council external solicitor made “derogatory” comments


Verdict

• The Administrative Court dismissed the

application by the claimant elected member of the

defendant local authority for judicial review of the

defendant’s initiation of formal investigatory

procedures and publication of documents.

• The authority had power to conduct the

investigations it had and did not find itself tainted

by bias, nor had it erred by publishing the

documents, which had been within its powers and

which were not in breach of data protection

principles.


R (Harvey) v Ledbury Town

Council 2018 EWHC 1151• “Malicious bullying and harassing” Councillor

• Clerk / Deputy Clerk complained

• “Grievance Panel” held:– removed from committees

– no external roles

– no contact with staff other than via Mayor

• Alleged:– ultra vires / unfair at common law

– Breach of ECHR Article 10 (Freedom of expression)

– Procedurally unfair


Held (J Cockerill)

• Council behaved in an “unreasonable and

disproportionate” manner

• No general power to run grievance procedure

• Need to follow procedure set out under Section 28 of

Localism Act 2011 – 4 stage process:

– allegation

– informal resolution

– formal investigation (involving Independent Person)

– action

• Councillors are not employees and should not be

treated as such!


Proposals for Reform?

• Review of Local Government Ethical Standards consultation ended on 18th May

• What do the questions tell us?

– are the current processes working?

– what are the gaps?

– do the codes cover an “appropriate range of behaviours”

– what safeguards are required to ensure due process?

– are MOs subject to conflicts/undue pressure?

• Are existing sanctions sufficient?

• Are members being intimidated?


Potential Improvements?

• How could whistleblowing be facilitated?

• What steps could be taken to improve ethical

standards ?

Questions


Check out the website …


Documents

Carrying out Investigations - EM LawShare