Recently the inquest jury reached their verdict in the Mark Duggan case. They decided that Mr Duggan was armed, but that he threw the gun away before the police surrounded him. The majority of the jury also believed that the police officer who shot him honestly believed that Mr Duggan was going to shoot, even though subsequent evidence suggested that he was not actually holding a gun when confronted.
In September 1999 Harry Stanley was fatally shot by a police office. He was carrying a table leg in a plastic bag. Police believed that he was carrying a concealed weapon. The inquest returned an open verdict. A second inquest concluded a verdict of unlawful killing. The police challenged this verdict and it was quashed. The reason given by the judge for a final decision of lawful killing was that the police officers genuinely believed Mr Stanley was going to shoot.
In both cases, juries found that the police had acted lawfully even though they were mistaken in thinking that the men posed an immediate threat. The police officers tasked with confronting the ‘armed’ men believed the danger was real. This meant the action that the officers took was lawful.
So what does this have to do with business owners and managers?
In scenarios where the disciplinary procedure has to be invoked, or someone raises a grievance or is off sick long-term, management decisions need to be made about future action to control unsatisfactory situations. As with police investigations, an informal investigation is carried out before a formal meeting is held. According to ACAS, the advisory service, employers are required to undertake ‘reasonable investigation’ in order to determine if there is ‘reasonable belief’ that the situation under investigation took place. The evidence collected during these investigations and any additional information that comes to light during formal meetings is then used when the manager determines appropriate action.
The onus on a manager is not as burdensome as that required of a police officer. However, it is important that when making decisions which lead to disciplinary sanction or dismissal there is reasonable belief that the sanction or dismissal is the correct course of action.
The way to reach ‘reasonable belief’ is to ensure that the investigations are undertaken by someone independent and to be sure that the evidence gathered allows that conclusion. Where practicable, the person investigating should not be the person running the formal meeting. This is not always possible in small organisations. In order to provide an independent investigation many employers will turn to organisations like TimelessTime who can provide thorough, informal investigations.
The decision on what management action to take should be made after a meeting has taken place with the individual or individuals concerned. In many cases this will be a formal meeting, and the way it is called and the proceedings during and after the meeting must comply with current employment law.
If the conclusion of the process is that, on balance, there is a reasonable belief that the situation occurred then management action such as a sanction will be lawful. If, however, there is no support for reasonable belief, the process must stop and no further management action can be taken.
No Need for Proof
So the manager’s right to act, to sanction or dismiss, is dependent on the manager having grounds for reasonable belief that the situation occurred. There is no need for proof beyond reasonable doubt or proof on balance of probabilities, just reasonable belief.
If that reasonable belief is supported by evidence from the investigation, the law will support the manager, even if ultimately the manager is mistaken in his or her belief.
It is difficult for managers to know everything about employment law, but with the right help and support there is no need for anyone to misunderstand what they can and can’t do.