Employer duty of care often overlooked when disciplining employees
Howard Hymanson, November 28, 2018
Employers must recognise that the risk of suicide arises during disciplinaries and dismissals
The tragic suicide of Carl Sargeant, following his sacking in November 2017 from his job at the Welsh government, is an example of how vulnerable people are when they are faced with career-ending dismissals, particularly those arising out of allegations of sexual misconduct. Sargeant’s family allege that he was deprived of “natural justice” and the circumstances surrounding his death are currently the subject of a high-profile coroner’s inquest hearing.
There are no published statistics as to how many work-related suicides occur. It is only in instances where the state is responsible or owes a special duty to the individual that a coroner is obliged to investigate the wider circumstances under Article 2 (the 'right to life') of the European Convention on Human Rights. Where a suicide occurs in a private employer setting the inquest is normally limited to ascertaining 'by what means' the death occurred but not the wider circumstances. Often the deceased's family will wish to avoid generating any publicity surrounding the broader background.
Notwithstanding this lack of data, employers must recognise that the risk of suicide does arise in these situations and should ensure that in carrying out a disciplinary investigation the welfare of the dismissed employee is not neglected.
Employers should appreciate that it is not uncommon for an employee to become mentally unwell in reaction to a disciplinary process, especially where their livelihood and reputation are on the line. Signs of mental illness can sometimes be obvious; such as where an employee complains they have not been sleeping well or are having difficulty concentrating.
Although it is not possible to predict suicide, it's common sense to appreciate how an employee faced with dismissal is feeling and to make allowances and show some compassion for their situation.
Before a disciplinary hearing an employer should consider if there are steps that ought to be taken before, during or after to safeguard the employee’s welfare. These should include insisting that the employee is represented or supported at a final hearing as a sense of dangerous isolation can commonly occur, especially where the employee may think that colleagues have become aware of the allegations. A disciplinary panel should be vigilant to note tell-tale signs that the employee may be unwell, such as how they present themselves and how they respond to questions. Pressing on with an instant dismissal without adjourning to ensure that the employee has adequate support should be avoided.
However, there is a lack of published information or guidance available to employers faced with these difficult situations. High on the ‘to-do list’ for the newly-appointed suicide prevention minister should be to publish appropriate guidance; so that at least the risk of self-harming can be reduced.
Howard Hymanson is a partner at Harbottle & Lewis and specialises in stress-related injury claims