A serious complaint required an immediate response

The case arose following a patient's report concerning alleged sexual abuse while receiving care at the hospital.

The patient did not identify a named member of staff. Instead, the description included general physical characteristics and information about the type of work the person appeared to be performing.

The hospital was therefore placed in a difficult position.

It had an obvious responsibility to take an extremely serious allegation concerning a vulnerable patient seriously and to determine what had happened.

The employee was identified during preliminary screening

Mr Agbons had worked in the hospital since 2001 and regularly worked night shifts.

Within days of the patient's complaint, he was identified during a preliminary screening process as the person suspected of being involved.

He was then suspended on pay for six days while the matter was examined.

The hospital maintained that it was required to respond immediately and that its procedures sought both to protect vulnerable patients and ensure fair treatment for employees.

The screening process was completed quickly and Mr Agbons was ultimately advised that he had no case to answer.

The WRC questioned whether the screening process was wide enough

A central concern in the decision was the scope of the initial screening exercise.

According to the reported decision, consideration had focused on employees rostered on the particular ward where the patient had been staying.

However, there were other wards on the same floor and potentially other members of staff who could have had access to the area.

The WRC was not satisfied that the general description provided by the patient could only have matched Mr Agbons.

Preliminary screening should identify possibilities — not manufacture a conclusion

An initial screening exercise can be extremely useful.

Its purpose should be to establish the available facts, identify possible witnesses, preserve relevant evidence and determine what further enquiries are necessary.

Problems can arise where the screening process moves too quickly from:

to a conclusion that a particular individual is the alleged wrongdoer before sufficient evidence has been gathered.

Employers must be alert to unconscious bias

The Employment Equality Acts prohibit discrimination in employment across a number of protected grounds, including race.

The race ground encompasses matters including race, colour, nationality and ethnic or national origins.

In this case, the WRC found that the way in which Mr Agbons had been selected gave rise to an inference of racial discrimination.

The decision reportedly considered the possibility that unconscious bias had influenced the process.

This is why objective criteria, documented reasoning and independent oversight can be particularly important when an allegation involves a description connected with a protected characteristic.

A description is a starting point — not proof

Employers will sometimes need to use a description provided by a customer, patient, service user or witness to identify potential employees who may have been involved in an incident.

There is nothing inherently improper about using relevant descriptive information as part of a wider fact-finding exercise.

The danger is treating a broad characteristic as if it uniquely identifies one employee.

Employers should corroborate descriptions against objective information wherever possible before moving from preliminary enquiries to an accusation or disciplinary process.

Suspension should follow an objective decision-making process

Suspension is frequently considered where allegations are particularly serious or where an employer believes there may be risks associated with allowing an employee to remain at work while enquiries continue.

But employers should avoid treating suspension as an automatic response to every serious allegation.

Before suspending, employers should consider matters such as:

• What evidence presently connects the employee to the allegation?
• Is there an identifiable workplace or safeguarding risk?
• Could evidence be interfered with?
• Could temporary alternative duties address the concern?
• Is the proposed suspension proportionate?
• Who has reviewed and approved the decision?
• Is the reasoning clearly documented?

Independent oversight can protect both the employee and the employer

Another notable feature of the case was the concern surrounding the level of oversight applied to the decision to identify and suspend the employee.

Where one manager has carried out the initial screening, employers should consider whether another appropriate person should review the evidence before significant action is taken.

This can be particularly valuable where:

• The allegation is exceptionally serious;
• A protected characteristic forms part of the description relied upon;
• The available evidence is incomplete;
• The consequences for the employee may be substantial; or
• The initial decision depends heavily on one individual's judgement.

The person who made the key decision may also become the key witness

The WRC also commented on the absence from the hearing of the manager who had played the pivotal role in the original screening process.

That created an evidential difficulty because the person best placed to explain how and why the employee had been selected was not available to give that evidence.

This provides a broader lesson for employers defending WRC claims.

Contemporary written records and the availability of relevant decision-makers can therefore become extremely important at a later hearing.

Employers may have two legitimate interests to protect at once

Cases involving safeguarding allegations can create a particularly difficult balancing exercise.

An employer may simultaneously need to:

• Protect a vulnerable patient, customer or service user;
• Take a serious complaint at face value;
• Preserve evidence and manage immediate risk;
• Avoid prejudging the person accused;
• Protect the employee's right to fair treatment; and
• Comply with equality legislation.

Those obligations are not necessarily incompatible.

What should employers take from this decision?

The wider lesson for employers

The WRC recognised that the hospital was dealing with an exceptionally difficult situation and had to balance the interests of a vulnerable patient with those of the employee.

That is precisely why the process used to move from a general allegation to identifying a particular employee matters so much.

Employers should be capable of showing not simply that they acted quickly, but how they reached their decision, what evidence they considered and what reasonable alternatives they explored.