I’m bereft. I have had to put away my red leather driving gloves and fabulous tartan outfits for another year. No, not because Burns season has passed, but because The Traitors reached its dramatic conclusion on Friday.
Traitor Harry managed to do it. He fooled (almost) all of the Faithful into believing that he was one of them, most notably Mollie. It came down to the two of them and, notwithstanding the ‘evidence’ before her (although let’s be honest, it is much easier at home with the iconic Claudia telling us in advance the identity of the Traitors and then seeing all of the subsequent conversations) she didn’t write down Harry’s name and voted to banish Jaz. Never has writing on a chalkboard been so costly!
But, not only is The Traitors a sartorial celebration, a magnificent advert for Highland Scotland, and a masterclass in manipulating people, it also serves as a useful reminder for employers when carrying out an investigation. Obviously, murder is not an outcome open to an employer but the show illustrates the importance of confirmation bias and the need to consider all relevant evidence during the investigation stage.
The ACAS Code
As most of you reading this blog (unless you are just reading it for The Traitors chat) will know, in order to show a fair dismissal, the employer needs to carry out a ‘reasonable investigation’. What does that mean?
As an employment lawyer, I am frequently asked what is relevant and what should be included in an investigation. How thorough does that process have to be? There is a misconception that the investigation should be forensic and that the employer needs to turn into Jessica Fletcher and be dogged in making sure that no stone is left unturned. Not so. The employer simply needs to consider appropriate and relevant evidence and present that to the employee at a hearing before reaching a decision.
But, I hear you say, what does that look like in practice? Good question. The answer, regrettably, is that it depends. The reason however that The Traitors is useful in this context is that an employer should also consider evidence that does not support dismissal if that is brought to its attention. To put it in Traitors terms: don’t be taken in by the charm of the person in front of you (Paul or Harry, for example) to the extent that you ignore what is relevant and within your knowledge. Likewise, don’t be so persuaded by your dislike or mistrust for someone that you put too much weight on evidence which is thin or countered by something else.
We all want to trust our gut and follow our instincts, like our Traitor-hunting friends, but if you are in an employment tribunal being cross examined on why you ignored relevant evidence uncovered during the process and which you knew about, the outcome is likely to be more consequential than that seen on primetime BBC One. You are likely to face a decision of unfair dismissal and potentially a hefty award of compensation.
So, when you speak to the employee concerned and they raise evidence, if it is relevant, then even where it doesn’t support the outcome that you would prefer, consider it. Don’t let your view of the person or their personality cloud your judgement. While there is discretion and it is for the employer to justify the action taken, only considering evidence which supports your bias is not advisable.
Broadly speaking when an allegation comes to your attention, speak to the person who has raised the concern (and any others whom they mention). Then speak to the person who is accused and, if that individual raises counter information or other relevant witnesses you should consider that too, even if only to discount it. You should consider relevant non-verbal evidence too.
To put it another way, if the person has done what is alleged then considering what they say (even if it later turns out to be irrelevant) might take a little longer but that is preferable to being grilled in an employment tribunal about why you ignored the warning signs. When you then invite the accused to a disciplinary hearing, remember to include all the evidence (documents, statements and anything else) that you intend to rely on at the hearing and consider as part of the decision-making process; they should have the chance to see and respond to that (be sure to listen to what they say) before you consider and communicate your outcome.
You don’t want to look back and think ‘I wish I had listened to Jaz’, after ignoring something to which you ought to have attached more weight – so keep an open mind and follow the evidence. That will stop you wrongly banishing a faithful employee.
As for me, even though the show is over, I’m sticking with my Claudia-styled knitwear for the next few months. Let’s face it, Spring doesn’t start in Scotland until April.
If you have any questions on this on any other area of Employment law, please get in touch with Blackadders Employment Team, working in Aberdeen, Dundee, Edinburgh, Glasgow and across Scotland.