1 IOSH Annual Conference 14 th May 2015 When an accident investigation reveals misconduct David Hughes Partner & Solicitor Advocate
2 Resolving the different aims of H&S and HR What are the aims of H&S and HR? How different are they really?
3 Aims of H&S investigation Accident prevention Establish cause(s) of accident Identify failures / learning points Make changes to systems, practices and plant Stop the same thing happening again
4 Achieved by... Gather information Analyse Identify risk control Create and implement action plan
5 Other aims of H&S investigation? Damage Limitation Avoiding or mitigating civil liability Avoiding or mitigating criminal liability Avoiding or mitigating reputational damage
6 Aims of HR investigation Establish causes of accident Identify breaches of policy or duty Identify acts of misconduct or neglect Assess whether there are grounds for action
7 Achieved by... Gather information Analyse Identify need for further action Create and implement action plan
8 HR action plan Investigation Hearing Appeal
9 Legal standards - investigation With a view to establishing the facts, not establishing guilt Conduct all reasonable investigations Band of reasonable responses
10 Legal standards - hearing Natural justice ACAS code Employer s policy Band of reasonable responses
11 Legal standards - appeal Natural justice ACAS code Employer s policy Band of reasonable responses May be a re-hearing, but need not be
12 Wrongful dismissal & unfair dismissal Wrongful dismissal is breach of contract Unfair dismissal - s.98 ERA 1996 Contractual dismissal may be unfair dismissal Fair dismissal may be wrongful dismissal
13 Consequences of wrongful dismissal Damages claim for breach of contract Principles of mitigation of loss will apply Claim for net loss resulting from failure to give notice NB tax free payment to 30,000 cap
14 What makes a dismissal fair or unfair? Burchell v British Home Stores Has the employer formed a genuine belief? Is that belief founded upon reasonable grounds? Have all reasonable investigations been carried out?
15 Consequences of unfair dismissal Statutory claim for compensation Statutory cap at 78,335 or 12 months gross wages Basic award Reinstatement or re-engagement
16 Consequences of unfair dismissal Reductions for contributory conduct Polkey reductions Failure to comply with ACAS code Statutory fines for employers NB tax free payment to 30,000 cap
17 The Employment Tribunal ACAS early conciliation Negotiate, mediate, conciliate or litigate?
18 The Employment Tribunal Preparing for litigation When should you start to prepare? What documents do you need? Which witnesses will be relevant? Do you need to engage a solicitor?
19 The Employment Tribunal Draft submissions first Identify issues Identify good facts and bad facts Identify evidence Finally, plan questions and evidence
20 The Employment Tribunal Disclosure Active case management Overriding objective
21 Alternatives to litigation ACAS conciliation Judicial mediation Private mediation Negotiation
22 Benefits of mediation Cost Time Privacy Control Flexibility
23 Questions and discussion
24 David Hughes Partner & Solicitor Advocate Accredited employment law specialist & Certified mediator E: T: T: M: F: