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Handling Hate Crime in the workplace

April 12, 2024

You may have seen the data released this week by Police Scotland showing that of the 7,152 complaints received in the first week that the Hate Crime and Public Order (Scotland) Act coming into force, only 3.8% have been judged to be legitimate.

In the short period since its enactment, I’ve already been asked by employers what they should do with allegations of “threatening or abusive behaviour” on the grounds of a characteristic (race, religion, disability, transgender identity, sexual orientation, age and variations in sex) made by employees against their colleagues that they have simultaneously reported to the Police.  There is no suggestion that the allegations are not legitimate or are otherwise spurious, but it does beg the question, what should an employer do with this information while a criminal investigation is underway?

Criminal offence v discrimination in the workplace

The first point to make is the test for an offence under the Hate Crime and Public Order (Scotland) Act is different from those for the different forms of discrimination under the Equality Act 2010. Therefore, an employer should be careful not to confuse or misuse evidence of alleged threatening or abusive behaviour which is intended to stir up hatred based on prejudice towards characteristics when considering unlawful discrimination at work and vice versa.

Criminal investigation v workplace investigation

The second point to make is, regardless of the nature of any criminal investigation into any complaint made against an employer’s member of staff, for example, theft, drug offences, domestic violence, fraud or stirring up of racial hatred, the Acas Code of Practice on Disciplinary and Grievance Procedures makes it clear that what the employer does should be separate from what the police do. The fairness of an employer’s disciplinary procedure could be called into question if it does not carry out its own investigation.

That said, an investigation does not necessarily need to start from scratch where the police have already looked into the allegations. An employer could make use of information provided to it by the police. However, an employer should always ensure that it evaluates the information received from the police carefully and considers whether any parts of that information need to be revisited or if further investigation is needed.

Waiting for outcome of criminal proceedings v undertaking disciplinary procedure

Thirdly, whether an employer even instigates a disciplinary procedure will be dictated by what the employee has been accused of (or charged or convicted with) and whether it has a bearing on their suitability for the job or their relationships with colleagues, the employer or its customers/clients. Employers should consider the following:

1. A police investigation (or criminal charge or conviction) related to off-duty conduct is not necessarily a reason for disciplinary action in itself. Factors to consider include the type of work the employee does, whether the job requires trust and responsibility and the actual or potential impact on work-related relationships and/or the employer’s reputation.  An employer should not immediately start a disciplinary investigation before first deciding if an investigation is warranted in the circumstances.

2. Where it is felt that what the employee might have been up to outside of work warrants investigation, an employer should think about whether it’s appropriate to put the investigation on hold pending the outcome of criminal proceedings. Unless it is immediately obvious that it would give rise to a real danger of a miscarriage of justice in the criminal proceedings, an employer should at least start the investigation by holding an investigation meeting with the employee concerned.  The employee may refuse to answer an employer’s questions, perhaps on legal advice, on the basis that doing so could prejudice a pending police interview or trial. In that case, the employer should still provide the employee the opportunity to make a voluntary statement. The employee should not be interrogated or put under pressure to make any admission of guilt. After providing this opportunity, the employer can continue with its investigation, interviewing any witnesses or gathering any relevant documents. If evidence is found which supports a recommendation for formal action, the employee can be invited to a disciplinary hearing.

3. When deciding whether to proceed with a disciplinary hearing or to delay, whether or not the employee has been suspended on full pay might be an important consideration in the employer’s decision-making process. An employer should also ensure that its disciplinary procedure expressly states that it will not usually wait for the outcome of any criminal proceedings before deciding what action, if any, to take.

If you have concerns about an employee’s conduct, whether in the workplace or away from work, and are unsure about what do next, get in touch with Blackadders Employment Team, working in Aberdeen, Dundee, Edinburgh, Glasgow and across Scotland.

The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.

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