Soundbite: Using Historic Allegations in Workplace Disciplinary Proceedings

John Torode has recently been sacked as the presenter of MasterChef after an allegation of him using “an extremely offensive racist term” was upheld. The allegations are thought to reference remarks that were made in a social setting between 2018 and 2019. Mr Torode has denied the allegations.

The use of historic allegations, which are complaints or misconduct that allegedly occurred in the past, in disciplinary proceedings can be a tricky area for employers. However, serious allegations may warrant action regardless of the time that has elapsed. If this situation arises, employers must balance the need to maintain workplace standards with the rights of employees to fair treatment.

Employers are required to follow fair procedures when conducting disciplinary proceedings, as set out in the Employment Rights Act 1996 and the ACAS Code of Practice on Disciplinary and Grievance Procedures. There is no statutory limitation period for bringing disciplinary action based on historic allegations. However, unreasonable delay may undermine the fairness of the process and could be challenged by the employee, particularly if the delay prejudices their ability to respond.

Some key considerations for an employer when dealing with historic allegations are as follows:

1. Fairness and Reasonableness – Employers must ensure that the employee is given a fair opportunity to respond to the allegations, regardless of when the alleged misconduct occurred. The longer the delay, the greater the risk that evidence may be lost or memories may fade, potentially prejudicing the employee’s defence.

2. Investigation – Employers should conduct a full and impartial investigation, even for historic matters. Consideration should be given as to whether documentary evidence or witness testimony is still available and reliable.

3. Consistency – If the employer was aware of the misconduct at the time but took no action, it may be unreasonable to discipline the employee later unless new evidence has come to light. Consistency in disciplinary action is essential to try to minimise the risk of claims of unfair treatment or discrimination.

4. Impact on Trust and Confidence – If the historic misconduct is relevant to the employee’s current role or undermines trust and confidence, disciplinary action may be justified. This is particularly the case if serious historic allegations have been raised.

While it is possible to use historic allegations in disciplinary proceedings, employers must proceed with caution. Ensuring procedural fairness, consistency, and a thorough investigation are essential to mitigate legal risks. Each case should be assessed on its own facts, with careful consideration given to the potential impact on both the employee and the business.

If you need assistance in dealing with workplace disciplinary proceedings of any kind, including historic allegations, please get in touch with a member of the team.