Deciding to show the red card? The VAR of employment law
This month John Yems, former Crawley Town manager, has been given a 15-month ban from football. The Football Association (FA) investigated allegations that Yems made racist comments to his players over a 3-year period. The FA conducted a full investigation in line with the FA rules.
Meanwhile, the Welsh Rugby Union (WRU) are also in the news with allegations of sexism and discrimination. It seems a confidential investigation has been carried out, but female employees are still concerned.
What should employers do when faced with potential discriminatory conduct?
Closing down the issues
Employers need to carry out investigations into potential incidents before they make a decision on any disciplinary outcome.
Acas has provided guidance on the investigations process, which can a be a helpful tool when planning an investigation. The disciplinary policy should also be checked - if the investigation process has been detailed in the policy it should be followed as far as possible.
Who should conduct it? The investigator should be independent and where possible shouldn’t be a witness in the disciplinary. Normally the investigator is a line manager but could be a HR representative.
The investigation should be completed as soon as reasonably practicable. The extent of the investigation will depend on the allegations. It might include:
- An investigation meeting with the employee;
- Obtaining statements from witnesses;
- Reviewing staff policies;
- Checking CCTV or any other evidence that is appropriate in the circumstances.
In the sin bin
In serious cases of misconduct, the employee might be suspended pending investigation. Some may remember Toni Minichiello, Jess Ennis-Hill’s coach, was suspended pending an investigation into sexually inappropriate behaviour in 2021. Suspension should generally only be used if there is a right to do this in the employee’s contract and should be for as short a period as possible while the investigation should continue in full swing.
Suspending the employee shouldn’t prejudice the investigation – the employer should make clear that no decision has been made.
During suspension, the employee should be paid as normal unless there are specific pay provisions for suspension in the contract, and suspension without pay should be exceptional.
At the end of the investigation, the investigator needs to make a decision whether the findings merit progression to a disciplinary hearing.
The investigator shouldn’t decide on the disciplinary sanction – this is the job of the disciplinary hearing manager – however the findings in the investigation help the disciplining hearing manager decide on the appropriate sanction. Given this, it is important that the investigation is carried out as thoroughly as possible as it will help support any disciplinary sanction.
The John Yems investigation resulted in his 15-month ban, but perhaps we learn more from the continued disquiet over the WRU incident. Even where investigations are completed, it is important to keep conversations open to ensure that employees are satisfied and feel they have been heard. We wait to see how the WRU will respond to these continued complaints.