Gov to pay ex-worker £13k after lack of support during investigation

Wednesday 16 November 2022

The Government has been ordered to pay £13,000 in compensation to a former employee with an anxiety disorder for failing to provide adequate support when he was accused of sexual misconduct.

In addition to ruling that the States Employment Board had discriminated against an employee with a disability, the Employment and Discrimination Tribunal also ruled that he had been unfairly dismissed.

The accusations made by two other staff against the employee - who Express has chosen not to name for mental health reasons - were referred to the police, but no charges were ever brought against him.

Following this, the Government initially provided him with six sessions with his preferred counsellor. However, the support was then withdrawn at what the Tribunal described as a time when he was "most in need of support" as he was "dealing with a police investigation and an internal investigation at the same time."

"His counsellor asked twice for additional sessions, but only two additional sessions were approved... We do not consider that the offer of AXA support and starting with a new counsellor was a suitable substitute for continuing with his existing counsellor. It was only on 27 January 2022 that an offer of 10 additional sessions with a counsellor of his choice was made," the Tribunal noted in its judgment.

Pictured: The case was heard by the Tribunal last month, but the judgment was only made public this week.

One of the reasons given by the Government was that the man "might need more help than a >psychologist could provide" - an argument the Tribunal said "does not make sense".

"...Why remove his counselling if the concern is that even more help is required? Also, the explanation does not accord with her oral evidence that she would have provided further sessions if these were asked for," the Tribunal, which was chaired by Dr Elena Moran, said.

They went on to conclude that the SEB had "failed to take reasonable steps to provide [the man] with the auxiliary aid of counselling with a counsellor of his choice."

The tribunal awarded the former employee, who had been employed on a zero-hours contract, the total of 18 weeks' work – totalling £7,576.02 – as well as a further £2,000 for "hurt and distress".

The judgment continued: "In calculating the compensation for hurt and distress we have considered the factors set out in Article 39 of the Employment and Discrimination Tribunal (Procedure) (Jersey) Order 2016 and find:

A. There was no campaign of discrimination;
B. The removal of counselling was one of the reasons that led [the employee] to lose his job, but this has been reflected in his award for financial loss;
C. The discrimination was relatively serious because it had an impact on [the man's] mental wellbeing; and
D. The discrimination continued from mid-November 2021 when the decision was taken to offer only another two sessions until [the man] was offered additional counselling sessions at the end of January 2022."

The tribunal also ruled that the SEB effectively removed the employee from his workplace for around four months without formally suspending him during the internal investigation.

It ruled: "We find that at or shortly after the meeting on 6 October 2021, [the employee] should have been formally suspended under the suspensions policy. This would have triggered a series of important protections for [him] including a formal suspension meeting at which he had the right to be represented and a 28-day review before the Suspensions Panel part of which would have involved a detailed consideration of alternative options to suspension.

"He would also have been guaranteed weekly contact. This did not happen and [the man] was left out of the workplace for almost four months with no formal suspension meeting having taken place, no review of the decision to suspend, minimal support and insufficient effort made to find him alternative work."

The employee was given an informal warning after the internal investigation into his behaviour was found to be partly substantiated. He was told he would be allowed to return to work but received no further information for 17 days after that.

"We consider that leaving [the employee] at home uncontacted for over two weeks was conduct that seriously damaged the trust between employer and employee and that there was no reasonable and proper cause for the conduct," the judgment said.

The tribunal concluded that he had been unfairly constructively dismissed and awarded him a further £3,367.12.