False accusations at work: HR help

Employers are required by law to deal with complaints or grievances at work fairly and lawfully. Handling such issues, however, becomes further complicated if you suspect the employee may be making a false allegation.

False accusations at work can relate to any kind of untrue claim of wrongdoing made by an employee.

While some accusers may be pursuing the complaint on a malicious basis, in other cases, the accuser may genuinely believe their complaint to be valid. Regardless of the intention, unfounded allegations can be distressing for the accused employee, and can be particularly damaging if the allegation is of a serious nature with disciplinary sanctions.

How the employer deals with the complaint can be the difference between resolving the issue in a way that is lawful and fair on all parties, and a tribunal claim being brought against the employer.

Dealing with suspected false accusations at work

Irrespective of any initial concerns or suspicion you may have as to the genuine nature of the allegations, you must approach the complaint in a fair and objective manner. This means following the organisation’s internal complaints procedure, as stated in the company grievance policy.

If the organisation does not have a grievance policy, the ACAS guidelines on disciplinary and grievance procedures should be followed to ensure the procedure undertaken is fair.

Fair investigation

The procedure should start with a workplace investigation into the allegations. This involves gathering evidence and speaking to relevant witnesses. All parties and witnesses should be interviewed independently.

Witnesses should confirm that any notes taken are a true reflection of their interview or discussion. If not they should be given the opportunity to provide their own notes. If the suggested amendments are not accepted then both sets should be kept on file in case there is a claim to an employment tribunal.

The individual conducting the investigation should be unbiased and have no prior knowledge or involvement with the matter being complained about. For larger organisations, this may be a member of the HR team or a manager from a different department to the accuser and alleged perpetrator. For smaller organisations, this may mean contracting a third party professional to carry out the investigation stage.

The employer will need to act with care and confidentiality when investigating the complaint, particularly where the complaint relates to sensitive issues such as bullying or sexual harassment.

The employer should act in a timely manner to avoid issues with gathering evidence and speaking to witnesses.

The employee being accused should be given detailed information of the complaint and be allowed sufficient time to respond accordingly.

Key questions during the investigation should address the following:

• What support evidence does the accuser have?
• Is the complaint corroborated by another employee or independent witness?
• Does the alleged perpetrator have evidence in defence?
• Whether there is any prior ‘history’ of issues between the employee making the complaint and the alleged perpetrator? Eg a recent disagreement.
• Consider whether mediation between the parties is appropriate as it may eliminate the problem at an early stage.

Ensure detailed minutes are taken of every meeting, and that these are signed and dated by the relevant parties at the end of the meeting.

Inform all parties about the relevant timescales involved in resolving the grievance.

Making a decision

Importantly, the employer must approach the investigation stage without pre-empting a decision. There should be no unnecessary or unexplained delay in reaching a decision.

At the conclusion of the investigation, a report should be produced which summarises the evidence and any inconsistencies. The findings should be reviewed to determine if there is proof that the allegations are false, and if so, whether the accuser genuinely believed them to be true, or if they pursued a vexatious complaint.

If the evidence suggests the accuser did believe and understand the allegations to be true, this would not be grounds for disciplinary action against them.

Where the evidence is clear that the allegations were deliberately made by the accuser and known by them to be untrue, then appropriate action under the disciplinary policy should be taken.

If, following the investigation, you find the complaint unfounded, then the accused individual may raise their own grievance which will also need to be investigated.

Taking disciplinary action for false allegations

For any disciplinary process to be fair, you should inform the employee about the outcome of the investigation and that you have found there has been a false accusation.

They should be provided with notice of the allegations against them, the evidence relied on to support the charges, and be given sufficient time to respond to adequately present their side of the story.

However, if you make a mistake during the disciplinary process this can result in the employee making a claim for unfair dismissal. In cases where the employee has been dismissed and you have failed to follow the company’s disciplinary process as referred to within their contract of employment, you will be in breach of contract. Breaches in contract can be brought in two venues e.g. a County Court or High Court, and for cases involving wrongful or unfair dismissal in an employment tribunal.

In cases where the employee has completed less than two years continuous service, there is no right to claim unfair dismissal in an employment tribunal, but the employee may still be able to claim breach of contract through the court.

In some cases, it may be appropriate to give a lesser warning to the employee making the false accusation. Above all, you should always consider any mitigating factors, such as prior exemplary service, the employee’s previous behaviour and conduct, and their length of service. You will need to demonstrate there has been consistent treatment between employees.

Where you decide the behaviour has amounted ‘gross misconduct’ you must be clear that the false allegation has been so serious that it has irrevocably destroyed the trust and confidence you had in the employee. Anything less and the employee, notwithstanding the two-year continuous service test, could take their case to an employment tribunal and claim unfair dismissal.

Does the complaint qualify as a protected disclosure?

There are certain complaints or disclosures that can be made by an employee that are protected. “Protected” or “qualifying” disclosures occur where an employee believes that any of the following has occurred within the organisation:

• Failure to comply with a legal obligation
• Criminal offence
• “Miscarriage of Justice”
• Danger to the health and safety of an individual
• Environmental danger
• Concealment of information relating to the above that is deliberate in nature

The above criteria relate to whistleblowing and are protected by The Public Interest Disclosure Act 1998 (PIDA). The Act only requires the complaint to be genuinely held and in the public interest for it to be disclosed. Fundamentally, the complaint does not have to be correct and because the Act grants the complaining individual protection from dismissal or less favourable treatment.

The employer will need to identify of the complaint amounts to a protected disclosure, and follow the organisation’s whistleblowing procedure.

Areas of risk when handling false allegations

If you fail to correctly handle a false allegation at work, the organisation risks employment tribunal claims. Here are some potential pitfalls to avoid:

• The employee should always be given the relevant evidence, this may be in the form of witness statements or social media posts. It should be provided at the time of the invitation to the investigation meeting, or if not, at least giving them sufficient time to enable them to prepare a proper defence.
• Does the complaint fall within a protected disclosure under the Public Interest Disclosure Act 1998 (PIDA)? Employees who have made a protected disclosure may bring a claim for unfair dismissal if their employment is terminated as a consequence of the disclosure.
• You must give the employee a warning at the outset of the possible consequences of disciplinary action before any disciplinary meeting.
• Relying on evidence from one source or witness with no corroborating evidence may not provide adequate grounds for disciplinary action.
• Any employee that is subject to disciplinary action should be given the opportunity to appeal the decision against them. Appeals should not be a ‘foregone conclusion’ but provide an unbiased review of the complaint and evidence, preferably from a pair of fresh eyes.
• If you wish to have the option to increase any sanction on appeal, this must be explicitly stated within the company’s disciplinary policy, and even then, the employee must be allowed a further right of appeal. Failure to do so is likely to be viewed by an employment tribunal as a breach of process.
• If you have dismissed the employee prior to the appeal being heard, it is advisable to wait before advertising a replacement. This is for two reasons, firstly, the employee may be able to claim the outcome of the appeal has been prejudiced, and secondly, if the employee’s appeal is successful and they are reinstated, the new recruit may have a potential claim for breach of contract if their offer of employment is withdrawn.
• Failure to keep adequate and clear records may jeopardise your whole disciplinary process. This can be particularly relevant where the employee disagrees as to the accuracy of the notes or records. In these circumstances, you should ask them to provide a corrected version. If you cannot agree that the employee’s corrected version is accurate you should keep both versions on record. Then, if you end up in an employment tribunal both versions can be referred to if necessary.
• Unnecessary or unexplained delay should be avoided. Most cases can be dealt with in a matter of weeks, however any unnecessary delay is not looked upon favourably by an employment tribunal. Although it should be noted that more serious or complicated accusations at work (such as sexual misconduct or fraud) will inevitably take longer to investigate.
• Avoid using the same person to oversee or handle the whole disciplinary process. In an ideal world, different people should deal with the investigation, disciplinary hearing, and any appeal. Employment tribunals commonly face claims that the same individual was in charge for the whole process. But what if you are a such a small company that it is impossible to have separate individuals deal with each stage of the process? Employment tribunals generally take the view that it is acceptable to instruct external HR consultants in cases such as these. However, it must be made clear at the outset that decisions are made appropriately and ultimately who will make the end decision to dismiss.

False allegations at work FAQs

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Legal disclaimer

The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.