What duties does the employer have regarding its treatment of the employee accused of misconduct?

An employer's legal duties and best practice towards employees accused of misconduct, or other employees who are involved, vary from jurisdiction to jurisdiction.

Local legal advice should be sought if there is any doubt as to best practice and the employer organisation’s obligations.

You should consider the following in relation to the accused employee:

  • treat the employee with due respect and care
  • comply with the employee’s rights to privacy throughout the investigatory process and follow applicable legal rules on data protection and monitoring
  • follow a fair disciplinary/grievance procedure (eg gather evidence without tending towards the role of prosecutor and consider the independence of any disciplinary decision maker)
  • follow the relevant terms of any collective labour agreements, contract of employment and internal policies
  • comply with the applicable law and best practice when conducting the investigation and/or disciplinary procedure. Consider whether you need to or would benefit from:
    • making the employee aware of any right he may have to a representative and what the allegations against him are
    • giving the employee an opportunity to put forward their case before concluding the investigation
    • not taking any disciplinary measures and maintaining remuneration and benefit levels until the investigation is completed

You should also consider best practice and your obligations as an employer to any other employees who are involved and may be protected. Relevant considerations may include:

  • whether there is any special protection afforded to the employee. This could be under whistleblowing, discrimination legislation or duties of confidentiality concerning personal information that relates to other employees (revealed during the investigation)
  • involving legal and HR teams to advise on these issues and on any steps that may be necessary to ensure that the treatment of any other employees involved does not give rise to claims by those employees