A workplace sexual harassment allegation in Scotland does not result in a single legal process; it results in two. The employer’s disciplinary investigation starts almost immediately. A criminal investigation could proceed concurrently. This is precisely the type of situation in which skilled solicitors such as McGovern Reid Court Lawyers advise clients to seek help because these two processes are interconnected, and it is a serious strategic error to attempt to handle one without addressing the other.
The Two Processes and Why They Are Different
Employment law, internal HR policy and the ACAS Code of Practice regulate the employer disciplinary process. Its role is to investigate the allegation and decide whether there is cause for disciplinary action, which may include dismissal. If a criminal investigation is undertaken, it will be conducted under Scottish criminal law. It is intended to establish if a criminal offence has been committed and if a prosecution should be pursued. The rules of proof, the rules of procedure, and their consequences are completely different.
How the Two Processes Interact
These processes interact and pose particular risks that defendants who only deal with one of them routinely face. Evidence from an employer’s disciplinary investigation can be used in a criminal investigation. An account given to HR without legal counsel could result in inconsistencies that a criminal prosecutor could exploit. If the two strategies are not coordinated, however, a decision not to answer police questions during a criminal investigation may be misinterpreted in the employment process. A defendant who addresses both processes simultaneously and provides coordinated legal advice avoids these risks.
The Employment Process: Your Rights
You have rights in an employer’s disciplinary procedure. You are entitled to be informed of the allegation in writing. You have a reasonable time to prepare your answer. At a formal hearing, you have the right to be accompanied by a trade union representative or a colleague. The investigation must be conducted impartially. Any failure by your employer to follow its own disciplinary procedure or the ACAS Code of Practice is relevant to any employment tribunal claim that follows. You have these rights and an employment solicitor can guide you through the process.
The Criminal Process: Your Rights
Once the case goes to the police, your rights shift dramatically. There is a right to legal representation before and during a police interview. You are not obliged to answer questions. Whether to answer a question in a police interview and what to say if so is one of the most important decisions in any criminal case and should not be taken without specialist criminal defence advice. A criminal defence solicitor will offer that advice when it is needed.
What Not to Do in the Early Stages
One of the first things that comes to mind when a workplace sexual harassment claim is made is to handle it informally. The informal aspects of the conversation with the colleagues, messages to the complainant, and attempts to explain or clarify the situation can have a significant impact on the employment and criminal aspects of the case. Anything said in the informal process can be recorded and incorporated into the formal process. Once an allegation is made, the best course is to communicate through the proper channels and under legal guidance.
Why Coordinated Advice Produces Better Outcomes
The defendant who advises on the employment and criminal processes from the beginning, and keeps both advisers informed of the two parallel processes, is in a much stronger position than the defendant who handles each process independently. Actions taken in one process that affect the other can be foreseen and controlled rather than left as an afterthought. Both dimensions have a consistent legal approach. The likelihood of a single process making a bad statement is eliminated. It is this sort of coordination that a dual legal strategy provides, and it is what the type of allegation requires.
David Prior
David Prior is the editor of Today News, responsible for the overall editorial strategy. He is an NCTJ-qualified journalist with over 20 years’ experience, and is also editor of the award-winning hyperlocal news title Altrincham Today. His LinkedIn profile is here.
