Important Reminder that Different Legal Systems Require Different Methods and Approaches

 

I came across a short, terrific article today about flaws in certain workplace investigations. The article was written about an investigation in the UK that led to a worker's dismissal. A Workplace Relations Commission (WRC) (similar to the US' Equal Employment Opportunity Commission, or EEOC) found that the employee was unfairly dismissed because the termination was solely due to criminal charges and not on a thorough investigation of the claims. The former employee was awarded about $40,000 dollars ($32,000 GBP). The award was made despite the ongoing criminal charges.

The article gives several helpful points to consider in workplace investigations, which they listed as:

• A presumption of innocence
• An impartial investigator who collects and evaluates all relevant evidence
• The accused should have an opportunity to respond and present his/her own evidence
• While not given primacy, confidentiality throughout the workplace investigation is strongly suggested.

Key Takeaway Point

Yes, I'm getting to it early! I'll discuss some differences in a section below. But the most critical point is this: Not everything that you read on the internet applies to every situation.

Physicians have struggled with Google Learning Syndrome for years. Patients come in already having googled their symptoms and want to come in for a formal diagnosis and treatment. While that can be helpful, what Google isn't great at is personalizing individual recommendations/treatment. You may have allergies, medicinal side-effects, genetic histories, etc. that require different approaches, diagnoses, and treatments. Among other reasons, that's why you can't order prescription medicines from WebMD. This is also related to the Dunning-Kruger Effect.

Employment law, and the workplace investigations that flow from it, are not uniform. In the US, we have a mix of federal, state, and local regulations that may apply. It is easy to see the differences between general US law and general UK employment law. It may not be so easy to spot the differences between Nebraska, Texas, and New York law. And if we are talking about union jobs, that's a whole different ball of wax!

Again, the important thing here is to understand that while what you read on the internet may be helpful, you should never take legal - or employment - advice from generic articles online. It's a great way to get yourself in trouble.

Differences with UK Law

I'm going to generalize here, but most US law is going to be fundamentally different in critical areas. With that in mind, let's take a look at those helpful points to consider given by the article:

• A presumption of innocence | In criminal trials, defendants are given the presumption of innocence. In workplace investigations the term is irrelevant. Workers can be and are dismissed for any or no reason, provided that they are not being terminated for an illegal reason (such as discrimination).
• An impartial investigator who collects and evaluates all relevant evidence | This is helpful, but, again, workers can be dismissed for any non-illegal reason in "at-will" employment states, of which there are 42 as of 2023. There are other schemes and factors at play (such as public policy and implied contract states), but for our purposes this statement is generally correct.
• The accused should have an opportunity to respond and present his/her own evidence | Not in the US. In a criminal trial, a defendant has the right to confront his/her accuser. Not in employment settings.
• While not given primacy, confidentiality throughout the workplace investigation is strongly suggested | Confidentiality is helpful, and recommended by 888 in most circumstances. But confidentiality is not required by most federal, state, or local laws. There are very few exceptions.

Key Takeaways Part II

As said above, the internet is a great place for research and help. But do not take anything that you read on the internet as gospel - including anything published by 888. Different locations have different governing schemes. That's why we always recommend hiring folks who know what they are doing (hint, hint!).

 

Note: this is a cross-post with LinkedIn.