Supplementary memorandum submitted by
FACT (Falsely Accused Carers and Teachers)
1. ISSUES
1.1 During the second session held on 17
June questions were posed about whether or not it was possible
in some way to combine the various investigations in order to
speed up the process and make it more efficient, and whether or
not the accused could be legally represented at disciplinary hearings.
2. COMBINING
THE INVESTIGATIONS
2.1 It is important to understand that in
most cases of alleged abuse (which can include even minor complaints
of emotional, physical, or sexual abuse (including any unwanted
touching) there will be three strands of investigation involving
the police, social services (child protection) and the employer.
2.2 The police have a duty of care to wider
society to uphold the law, social services have duty of care to
protect children, and the employer has a duty of care to its employees.
2.3 Whilst there may be some sharing of
information and mutual cooperation, each of these agencies is
required to operate within a different statutory framework, and
is accountable to different bodies.
2.4 In practice what happens is that where
it is suspected that a crime may have taken place the police investigation
rightly takes priority. These investigations can take several
weeks, indeed months to complete. At the same time the local authority
social services department (or equivalent) has a statutory duty
to make, or cause inquiries to be made, in any case where it is
suspected a child (or children) may be at risk of significant
harm (Children Act 1989, section 47).
2.5 Once these investigations are complete
the employer will want to carry out their own investigation and
satisfy themselves as to whether or not the allegation made amounts
to misconduct, whether the employee has breached any of the employer's
policy and procedures, or behaved in such a way that has affected
essential trust and confidence between employee and employer.
2.6 In many (but not all) cases information
gathered through a child protection investigation is untested,
and developed without the accused being given an opportunity to
defend their position. Difficulties arise when employers accept
such information uncritically. There is for many accused staff,
a tension between the child protection approach and the need for
a just investigative procedure. Employers have a duty to assess
each case objectively and according to the evidence.
2.7 In our view there is very little scope
for combining investigations. With the exception of the police,
there however remains a need to improve the quality of investigative
practice and to ensure that justice considerations are given a
much greater priority throughout the investigative process, including
in child protection meetings.
3. LEGAL REPRESENTATION
AND THE
RIGHT TO
BE ACCOMPANIED
3.1 Most employers and most local authorities
have their own distinct procedures for dealing with potential
disciplinary issues. These procedures are generally informed by
an ACAS statutory code of practice.
3.2 Workers have a statutory right to be
accompanied at a disciplinary hearing (but not at an investigative
hearing) by a companion where the disciplinary meeting could result
in:
(a) a formal warning being issued; or
(b) the taking of some other disciplinary action;
or
(c) the confirmation of a warning or some other
disciplinary action (appeal hearings).
3.3 The chosen companion may be a fellow
worker, a trade union representative, or an official employed
by a trade union. A trade union representative who is not an employed
official must have been certified by their union as being competent
to accompany a worker.
3.4 It is important to note that there is
no statutory right to legal representation.
3.5 In our experience it is exceptionally
rare for any employer, including local authorities, to permit
a solicitor to attend such meetings even in cases where the accused
is not a member of a trade union and/or has not been able to obtain
representation from among the workforce.
3.6 In general terms we support the view
that disciplinary proceedings should not become "legalised"
but never the less feel that the ACAS Code of Practice could be
strengthened by giving the accused the right to be represented
by any person other than a legal representative. This would avoid
situations where some individuals are left without any representation.
June 2009
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