Downing Street, hearsay and HR law

Despite this, I can't help but comment on one aspect of the whole sorry Chris Pincher scandal currently engulfing Downing Street.

Over and above the troubling nature of the allegations of sexual misconduct, a lot of coverage has focused on Mr Pincher's appointment as deputy chief whip.

As is now clear, the appointment came at a time serious concerns were expressed about his behaviour.

I found one of the government responses to criticism of the appointment particularly surprising. This was an explanation, attributed to Number 10 sources in the media recently, that the government was obliged to ignore “hearsay” and rumours of inappropriate behaviour under “HR law."

As defences go this looks a bit woolly and the statement has been subject to much criticism. All fully deserved.

Deserved criticism

One obvious criticism is the reference to HR law.

As an employment lawyer my day job comprises advising on workplace issues. Accordingly, I can confirm there is no shortage of employment law out there.

However, despite this, there is no category of “HR law” separate from employment legislation and case law.

Let’s be charitable and assume rather than invent an entirely imaginary new category of law, the source’s reference was indeed to employment law. The problem here is that there is no employment law prohibiting an employer taking into account rumours and hearsay.

To illustrate, hearsay is evidence which comes to us second hand (e.g. “I didn’t see it myself but Jimmy Smith was there and told me what happened”).

A quick review of Scottish legal history tells us hearsay evidence has been allowable in the Scottish civil courts since 1988. Further, throughout the UK, hearsay evidence is permissible in employment tribunals.

I am also confident there has never been a rule preventing employers taking into account hearsay evidence in the workplace.

According it would be slightly surprising to find that, despite this, a law against relying on hearsay is alive and well when it comes to making internal government appointments in Downing Street.

Workplace conduct

Employers should not feel constrained when it comes to doing the right thing.

To explain, employers throughout the UK are entitled to, and in many cases obliged to, look into concerning workplace conduct.

An obvious example of where this would be expected is in cases of alleged sexual assault. These concerns could include alleged criminal behaviour.

However, the rules that apply to the police or in a criminal court do not apply to internal investigations an employer conducts.

Concepts such as the need for corroboration or a requirement allegations are proven “beyond reasonable doubt” do not apply. The same can be said of “hearsay”.

And so, employers can protect colleagues and also their business without being misled into believing by there are detailed rules of evidence or “HR law” which dictate what they can and cannot take into account.

The reality

The reality is simpler.

In effect, employers should conduct investigations fairly and with an open mind. They should not ignore relevant evidence or genuine concerns.

How this applies in practice will vary accordingly to the nature of the concerns. However, it will never be a reason, or legitimate excuse, not to investigate possible misconduct because of procedural rules.

Fortunately, nearly all employers know this.

Did the anonymous government source genuinely believe what they said or was it a clumsy attempt to deflect criticism?

It may be best to answer this question with a quote, appropriately enough, from another former government whip, albeit a fictional one — Francis Urquhart in House of Cards.

"You may think that; I couldn't possibly comment."