News and Information Update
Investigations are undertaken against an ever-changing backdrop of legislative change and important legal and judicial stated cases or decisions. It is essential that all such developments are taken into account by Investigating Officers as well as those who have particular policy responsibilities associated with human resources, governance, risk and audit in organisations.
Where appropriate, the processes and procedures against which investigations are conducted should be refined accordingly. In all instances Investigating Officers will need to be aware of the developments so as to incorporate them in the practicalities of conducting an investigation.
This page highlights what we consider to be the most recent and significant of those developments. On occasion the impact on the investigative process will be obvious and important, whilst in others it will be less so; the impact will be subtle. The following therefore provides as a basis for bringing such developments to your attention, to raise your awareness, inviting you to consider the implications and to take follow-up action should you so decide.
Legislative change:
On the 5th December 2005 the Disability Discrimination Act gave rights to workers with serious health conditions not to be treated unfairly. The Act places responsibilities on employers and organisations providing services, once they have been notified of the nature of the employee’s serious health condition.
On the 6th April 2005 the EU Information and Consultation directive (became) effective, giving employees in organisations of more than 150 members of staff the right to be informed about the organisation’s economic situation, future prospects and all changes that could affect their employment, including working arrangements, contractual relations, redundancies, mergers or takeovers. The ‘consultative’ aspect of the directive, of such bodies as ‘works councils’ comprising management and labour representatives, is less clear and less well understood. Irrespective of this, if 10% or more of an organisation’s staff so request, then the organisation will have to negotiate with its staff to set in place formal information and consultation arrangements. By April 2007 the directive will have extended to organisations with between 100 and 150 members of staff, extending to organisations with between 50 and 100 members of staff the following year.
At first glance it is difficult to see the implications for the conduct of investigations and related policies. There are, however, significant implications which need addressing at the outset. If these are not acted upon during the very early stages of the implementation of the directive, then it will be extremely difficult for an organisation to tackle them thereafter.
For further information on this point please contact wiseowl@fulcrumtrainingservices.com
Stated cases and judicial decisions:
Subject - Application of the Civil Standard of Proof
In a case considered by the Court of Appeal, with judgement published on the 12 th January 2006 , one of the key issues addressed by the Court concerned the civil standard of proof, and of its application and flexibility in the context of the degree of seriousness of an allegation being investigated.
This case has significant implications for undertaking all investigations of a non-criminal.
For further information on this point please contact wiseowl@fulcrumtrainingservices.com
Subject - Relevance of all Circumstances
In a case considered by the Court of Appeal, with judgement published on the 10 th January 2006, the Court addressed the central issue that, at the time of an accident, all of the surround circumstances needed to be taken into account as they were central to the determination of the facts of a case when deciding liability.
For further information on this point please contact wiseowl@fulcrumtrainingservices.com
Subject - Complaint of Sexual Harassment in Employment Reference
In a case considered by the Queen’s bench Division, with judgement published on the 7 th December, 2005, it was determined that, with regard to complaints of sexual harassment in a job reference, there was no requirement to apply a statutory provision or regulation when considering the definition of that term.
For further information on this point please contact wiseowl@fulcrumtrainingservices.com
Subject - Manager is Jointly Liable with Employer for Discrimination
In a case considered by an Employment Appeal Tribunal, with judgement published on the 16 th November, 2005, the issue in the case was that of a manager who consciously fostered and encouraged a discriminatory culture at work by behaviour and example against a pregnant employee. The tribunal’s decision was that the manager was jointly and severally liable, together with the employer company, for damages awarded by the employment tribunal.
For further information on this point please contact wiseowl@fulcrumtrainingservices.com
Subject - Explanation of Judges’ Decisions
In a case considered by the Court of Appeal, with judgement published on the 15 th November, 2005, the issue addressed was that of the point that, having had to grapple with conflicts in the evidence of witnesses, judges should deal with the fundamental issues in sufficient detail so as to explain how they arrived at their decision.
For further information on this point please contact wiseowl@fulcrumtrainingservices.com
Subject - Fairness of Trial After Death of Witness
In a case considered by the Court of Appeal, with judgement published on the 15 th November, 2005, the central issue was that of the admissibility in evidence, and the implications for the fairness of a trial, when the sole witness had made a statement but then had died prior to the court hearing, and the statement was read in court.
For further information on this point please contact wiseowl@fulcrumtrainingservices.com
Subject - Witness Training
In a case considered by the Court of Appeal (Criminal Division), with judgment given on the 2nd February 2005, the principle was upheld that ‘the training or coaching of witnesses in criminal proceedings, whether for prosecution or defence, was not permitted’. However, the principle did not prohibit pre-trail arrangements to familiarise witnesses with the layout of the court, the likely sequence of events when giving evidence and a balanced appraisal of the various participants, provided that there was no discussion about proposed or intended evidence.
Whilst this case focused on the criminal aspect of the judicial system, there are clear and obvious implications for the work of Investigating Officers and of Discipline Boards convened to adjudicate on the outcome of investigations conducted within their organisation.
For further information on this point please contact wiseowl@fulcrumtrainingservices.com
Subject - Harassment and Bullying
The Court of Appeal (Criminal Division) in March gave a judgment in favour of an appellant who claimed that he had been persistently harassed and humiliated by his line manager. The Court of Appeal allowed the case to proceed under the Protection from Harassment Act, 1997, a law originally aimed at stalkers. The judgment stated that ‘employers can be vicariously liable for bullying conduct by the victim’s manager or fellow worker if it is closely connected with the employment. Significantly, the claimant does not have to show that the injury was forceeable, or that the employer was at fault.
There are clear implications here for all investigations carried out into such work-related allegations where elements of harassment, intimidation, prejudice or bullying may be present.
For further information on this point please contact wiseowl@fulcrumtrainingservices.com
Subject - Coercion in statement-taking
A case considered by the Court of Appeal (Criminal Division) with judgment given on the 25th May, 2005 , concerned coerced compliant confessions. Although the appeal arose out of a case dealt with in 1978, the judgment by the Appeal Court identified a number of salient points concerning the interviewing of individuals accused or suspected of having committed an offence, points which are as relevant today as they were in 1978.
The articulation of the various points given in the judgment might be regarded as ‘best practice’ and extending to all investigations, whether in the criminal or civil contexts, and embracing interviews and statement-taking from witnesses as well as those suspected or accused of having committed an offence.
For further information on this point please contact wiseowl@fulcrumtrainingservices.com
Subject – Doctor’s Judgments
On the 27 th May, 2005 , the Queens Bench Division gave a judgment concerning the referral to hospital in cases of suspected meningococcal infection. The import of the judgment was that such referrals should be made without waiting for the illness to develop to the point where specific signs and symptoms had developed. The crucial issue was the combination of the speed with which the infection could take over and which, as a consequence, so heightened the risk that hospital referral should take place on the basis of a properly formed and carefully assessed suspicion.
The judgment has implications for the difficult and sensitive investigations conducted into the activities of the medical profession where issues of personal judgment and suspicion will be ever-present.
For further information on this point please contact wiseowl@fulcrumtrainingservices.com
Subject – Health and Safety
The Court of Appeal (Criminal Division), in a judgment published on the 6 th June 2005, stated that in assessing the appropriate fine for a breach of health and safety regulations, public services would often be treated more seriously than when the breaches were confined within the private sector, even where there was comparability between gravity of breach and the economic strength of the defendant.
The judgment has clear implications for all investigations conducted within the public services where possible breaches of health and safety regulations may be may be present, including investigations into Employment Law allegations and suspected contraventions.
For further information on this point please contact wiseowl@fulcrumtrainingservices.com
Other matters:
Subject - Human Rights
Article 8 of the European Convention on Human Rights, which protects the rights of individual members of the public to respect for their private lives, has recently been cited in High Court and County Court cases. Certain disclosures have been found to have breached that right and the courts’ decisions have found in favour of the members of the public bringing the actions.
There are clear implications in these findings which impact upon the policies and processes by which investigations are undertaken, and of the manner in which the outcomes of those investigations are finalised.
For further information on this point please contact wiseowl@fulcrumtrainingservices.com
Subject - Investigating Patient Safety Incidents
In a few weeks time the Memorandum of Understanding between the National Health Service, the Association of Chief Police Officers and the Health and Safety Executive concerning the investigation of patient safety incidents where unexpected death or serious untoward harm has occurred will be ratified and become effective. The import of the memorandum is to ensure effective professional investigations into such occurrences through the three organizations communicating and working with one another in a consistent and ordered manner. For the Health Service, the responsibility for ensuring this level of operational effectiveness will reside with each NHS Trust.
There are clear, unambiguous implications for all investigations conducted into such matters, particularly for the NHS Trusts concerned.
For further information on this point please contact wiseowl@fulcrumtrainingservices.com