Russell Brand – what would you do if he was your employee?

Sexual Assault Workplace article - September 2023
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Imagine a situation where an employee of yours is accused of serious sexual offences outside of work that doesn’t involve any work colleagues.

At first glance, a default approach might be to say that what happens outside of work is a private matter for the employee and so does not and should not affect their employment. But, it’s often more complicated than that.

In this sort of case, an employer may want to be mindful of three possible scenarios:

  1. Whether the employee’s behaviour outside of work affects, or may affect the organisation’s reputation.
  2. Whether the employee’s alleged behaviour impacts on whether their colleagues would want to work with them.
  3. If your organisation is subject to the Keeping Children Safe in Education (KCSIE) rules, then a third question might be about transferrable risk. While the considerations about this are beyond the scope of this piece, it is definitely still worth seeking advice about.

It’s worth remembering also, that the employment law test to arrive at a decision is on the balance of probabilities. This is a lower bar than the criminal test which is beyond reasonable doubt. This means that employers can and should arrive at their own conclusions and not have to feel that they need to wait for, or follow, the judgments and decisions in any criminal case. A word of warning here though: if the police are involved, you need to ensure that you don’t take any steps that the police might claim prejudices their own investigations, so it’s important to open a dialogue with them at an early stage.

This is a very complex area, which has become tricker with the arrival of social media and people commenting on a difficult situation. We recommend you should avoid any knee jerk reactions and promptly form a team who will deal with the process. If the incident has become widely known then let employees know who will be dealing with it and, for instance, designate a point of contact who will deal with media queries.

The standard advice regarding a disciplinary process also applies of ensuring a separation of roles, so someone should be given the task to investigate the matter, someone else (ideally more senior) should be given the task of hearing any disciplinary, should that be necessary; and then a third person (more senior still) should be identified as an appeal hearing manager.

It goes without saying that it is also sensible to take advice. Your organisation may well be facing this challenge for the first time whereas we have got experience in dealing with these matters.

For further advice and guidance on this matter or other HR related concerns, please contact Simon Martin in our team on 07384 813 076.