4E.1-4E.2: Managing allegations against employees

Guidance

Responding to safeguarding concerns or allegations about matters outside of the employment relationship

Matters in an employee’s personal life, which may have safeguarding implications for a Church Body, may be brought to the attention of a Safeguarding Officer or HR Lead through various means, which may include a formal request for suspension from a LADO. These may be investigated, but only acted upon in circumstances in which it is clear that they have a bearing on the employment relationship and their role within the Church Body. Conduct outside of work, which is not linked to, and has no bearing on, the employment relationship is unlikely to justify any disciplinary or similar HR action. The HR Lead must give consideration as to whether the employee’s line manager should be made aware of the matter and must document the outcome and rational for that decision.

It is good practice for employers to outline any reasonable expectations of their employees’ conduct outside of work (e.g. acceptable use of work equipment, social media use) in their HR policies, so that employees are clear about what is and what is not acceptable. Including examples of behaviours which might constitute misconduct or gross misconduct is also a helpful way of ensuring that expectations are made clear from the outset.

For misconduct that takes place, or is alleged to have taken place, outside the workplace, Church Bodies may not be able to fully assess the matters at hand and, therefore it is important to clearly focus on any overlap between the employment and the alleged misconduct. The way in which the alleged misconduct outside of work impacts employment with the Church Body should be made clear to the employee from the start. In cases in which a police investigation is underway, the employer does not need to wait for the outcome of the investigation or prosecution before taking fair and reasonable action. As with misconduct at work, any disciplinary action taken in response to conduct outside of work must be justified, reasonable, proportional, follow a fair process and respect an individual’s rights under employment law.

Responding to concerns where there are multiple employment contracts

The same principles as set out in Section 4E.1.2 would also apply to situations where an employee holds employment contracts with different Church Bodies. If one body receives a concern and is aware that the employee is involved in similar work elsewhere, they will need to decide, based on the specifics of the case, at what point (if any) they need to inform the other Church Body. If the contract is for a completely different role and there is no risk identified, Church Bodies would need to take advice and justify why if they felt it was necessary and proportionate to share information with another employer in those circumstances.

Responding to safeguarding concerns and allegations involving non-recent abuse or misconduct

For guidance on managing safeguarding allegations involving deceased respondents, please refer to the relevant Pathway within this Code. In cases where the respondent is now only a member of clergy and is no longer an employee in any capacity within the Church, even if they were an employee at the time of the incident, please refer to the clergy pathway.

If a safeguarding allegation is raised about a current employee of a Church Body and it is about non-recent abuse or misconduct, due process needs to be followed to investigate the allegation raised, as outlined in the relevant HR policies and procedures. If the safeguarding concern or allegation refers to aspects of an employee’s personal life, including aspects linked to their past employment outside of the respective Church Body, the guidance in this section applies.

If the allegation is non-recent abuse or misconduct linked to that person’s employment, but the person is no longer an employee or resigns during the process, then HR Leads, line managers and Safeguarding Officers still have a responsibility to respond. A limited process is still required in order to:

• provide a response to the complainant;
• gather information, assess and manage any ongoing risk, including deciding whether information needs to be shared and with whom;
• make any necessary referrals to the Charity Commission, LADO or DBS and;
• gather any learning so that any similar situations can be avoided in the future.

Assessing and managing any ongoing risk

Even though a respondent has left their role in a Church Body, from a safeguarding perspective the following considerations need to be taken into account:

• if the allegation is that a crime might have been committed or that a child, young person or vulnerable adult has been, or might be at risk of being, harmed, then relevant statutory services might need to be informed;
• the respondent may have moved on to a role that involves contact with children, young people and vulnerable adults (inside or outside of the Church);
• other potential victims might be part of the respective Church community, Church Body or TEI, and may require support;
• depending on the nature of the allegation, the respondent might have had connections with other individuals who may continue to be connected to the Church Body or TEI and may pose a risk to vulnerable individuals (for instance, if there is the possibility that a different employee or a group of employees covered up or failed to act to stop abuse from taking place);
• depending on the nature of the allegation, if the processes put in place to safeguard children, young people and adults are alleged to have failed, their effectiveness needs to be reviewed and improved.

Whilst HR, the line manager and the Safeguarding Officer would not be in a position to conduct a full investigation or case assessment, they may:

• check the relevant safeguarding, HR and other records and files;
• speak to other employees or individuals connected to the Church, who might have witnessed the alleged events or misconduct;
• consider if any information is held with regard to the employee’s subsequent employment or other roles.

If information is held or becomes available about a former employee’s current employment, then the need to share information about the allegation with the new employer should be considered. This will generally be done only in very limited circumstances. The key questions that should be asked in this case are:

• Are statutory services involved? Have they been informed? If yes, follow their advice.
• Has the Diocesan Registrar or the relevant legal advisor provided advice on whether the information about the allegation should be shared? If not, ask for their advice.
• What is the nature of the allegation? Based on the records and information gathered, should the allegation be true, would there be a continued risk of harm to children, young people and vulnerable adults?
• Does the individual’s new role involve work with children, young people and vulnerable adults?
• Would children, young people and vulnerable adults potentially be at risk if information is not shared?

Any information shared with a different employer needs to be necessary, accurate and proportionate, with a clear rationale and aim, and should meet the requirements under data protection legislation.

It is not advised that a Safeguarding Officer, HR lead or a line manager undertake efforts to contact other potential victims or survivors, unless specifically requested to do so by the police. Attempting to directly contact other victims and survivors can lead to them being re-traumatised.

Managing safeguarding risks

Safeguarding Officers can support HR Leads and line managers to assess any risks, that may arise from allegations.

The actions that can be undertaken to manage risks (both on the initial receipt of the allegations and in the longer term) should be specified in the relevant HR policies and should be in alignment with employment law. Depending on the policy, these actions may include suspension on pay or re-arrangement of work responsibilities e.g. the employee ceasing to undertake certain duties or ceasing to have contact with certain people.

It is important to note that assessing risk is not a one-off action, but a process – a professional’s understanding and assessment of risk in a particular situation can evolve over time, as a case progresses, and further information becomes available. This means that HR, line managers and Safeguarding Officers will need to maintain an open dialogue about the nature of any risks involved and any actions or measures needed to manage them.

For clarity, there is no expectation that a Safeguarding Case Management Group will be convened to manage risk in cases involving employees. Instead, the relevant HR policy or procedure should be followed, and it may be that the policy already utilises the use of a similar style of group in order to manage the risks.

Support to the complainant and the employee

Support to the complainant must be offered in line with the requirements and guidance set out in the “Responding Well to Victims and Survivors of Abuse” guidance. This will generally be coordinated through the Safeguarding Officer.

Support for the employee should be specified in the relevant HR policy and should reflect an employee’s rights under employment law e.g. the right to be accompanied in disciplinary hearings by a colleague or a trade union representative.

Record-keeping

HR Leads and line managers should ensure that all the key information regarding a case is recorded on their own Case Management system. This includes timelines, details of any meetings held, any outcomes / decisions (including the rationale) and information about any referrals made. Church Bodies will have different arrangements for the recording and storage of HR information, including details on the systems HR might need to use to record that information. Guidance on records management is available on the Church of England website, which includes specific guidance on the management of safeguarding records.

Church Bodies will need to make it clear to employees what data will be processed and why, and where and for how long that data will be stored. Church Bodies can include this information in a Privacy Notice.

Safeguarding Officers should maintain records of the following:

• That a matter has been assessed as a safeguarding matter needing input from a Safeguarding Officers or the NST;
• Information about referrals to statutory services – in situations where a decision was made not to make a referral, the rationale for this should be recorded;
• Information about the support offered to the complainant and the respondent;
• Any advice on risk management that was provided to HR or the line manager;
• The key outcomes that a HR process has achieved, where these outcomes are linked to the management of risk (e.g. suspension decisions).

Gathering relevant learning

If abuse took place, Church Bodies should reflect on their safeguarding arrangements and understand where such arrangements have potentially gone wrong. Learning lessons from such incidents and addressing any identified weakness or gaps in the effectiveness of relevant arrangements is an important aspect of the management of both recent and non-recent allegations.

This is a different process to that of conducting a formal, independent Safeguarding Practice Review. However, the reflective exercises and some of the principles outlined in the Safeguarding Practice Reviews Code of Practice can help HR, line managers and Safeguarding Officers to reflect on relevant lessons to be learnt.

Risk Assessment – please refer to Section 5.

Outcomes, Closure and Long-term risk – please refer to Section 6.