Opinion on whether Russell could be dismissed (if he were your employee) is divided even if the weight is more on one side than the other. “Innocent until proven guilty” I hear cried. But that is a misunderstanding.
Whether Russell Brand, or one of your employees who is accused of a sexual assault, is guilty is not necessarily of relevance to you as an employer. You might dismiss them and, even though they are subsequently acquitted, the dismissal could be fair.
It is pertinent as to whether the harassment is committed in the course of their employment with you. This blog assumes that situation.
To be convicted of a crime an individual must be guilty beyond reasonable doubt. It is the task of the defence barrister to feed doubt into the minds of the jury or, in minor cases, the mind of the Magistrate. Often there are no witnesses and arguably there can be a misunderstanding, about consent for example. It is a tough test to decide whether the doubts put forward by the defence are reasonable or not, which is why juries can deliberate for days.
But as an employer the task is less challenging. There may be no witnesses, and there may be accusations of one party misleading the other. But the employer is entitled to weigh up the balance of probabilities. Was the harassment more likely than not? Often it is a more senior person (even yourself), who is accused. Their (or your) defence may be a belief the flirting, unwanted advance, or “assault” was welcomed. That it was “consensual” or even encouraged. One person’s word against the other.
There are two matters of which to be sure. Do you have a genuine belief in one party rather than the other. Sadly, you will need to lean one way or the other. What should help you are grounds for your belief. You will need these should you subsequently need to defend your position. This could arise because you dismiss one party or because one party claims constructive dismissal (for your failure to discipline the other party).
This means it is critical to thoroughly investigate the accusation(s). This can be done internally but it is usually best to engage an outside investigator. If you are the accused, then outside investigation is essential. You cannot investigate yourself in these situations! Employer Solutions can help.
With a thorough investigation, genuine grounds for your belief and a well followed disciplinary procedure it is unlikely to matter whether an alleged perpetrator, whom you may have already dismissed, is subsequently found to be falsely accused.
There is a danger with blogs of covering only the simple situations. Life is not always like that! For example, if an outside investigation finds you guilty of harassment (intentional or otherwise) what then? If on balance, let us suppose, you conclude internally that Russell Brand (or his likes) has been accused falsely, do you suspend him while the legal proceedings run their course? Those proceedings will take months if not years. In some circumstances it may be possible to move the employee away from the situation, but obviously not someone of prominence.
Returning to Russell Brand, he may not in fact be an employee of any organisation. This blog sought to describe the principles applying to employees.
At Employer Solutions, we are trusted experts in navigating the pitfalls in this type of scenario. With a history of in depth, hands-on, experience, we can empower your business to thrive.
Keep in mind that the media is not always a reliable source, the balance of evidence available in the press seems to favour Russell’s accusers, even if there are the doubts raised by his strenuous denials. Any employer would need to follow a robust procedure. Nevertheless it is likely that, someone such as Russell Brand could be dismissed safely even if subsequently found not guilty.
Malcolm Martin FCIPD
Author Human Resource Practice
Blogs are for general guidance and are not an authoritative statement of the law.