Legal bligation to report possible crime

BattleCorp

Writing a reporting procedure in work.

Supposing a staff member says they were assaulted/sexually assaulted in work but doesn'twant to report it to the Gardai, is there a legal obligation on the manager to report the incident to the Gardai?

I understand there's a legal obligation to report these to the Gardai if the victim is u18 or if they are a vulnerable adult but I'm not sure if the obligation to report applies when it comes to competent adults.

Babyreignbow

No, you might feel you have a moral duty however unless you're a witness it would be up to the victim to present themselves to make a statment and if you do decide you want to make an allegation against someone maybe have a look at this and then make sure you present yourself in person with ID and be prepared to stand by your statements.

If you do want to help someone direct them to resources which might give them helpful advice, the DRCC has a good website with lots of information and a contact service if they feel they need support. They can then advise on if or how to proceed with making a statement to the guards. (not that the guards are guaranteed to do anything other than take a statement)

edit: https://www.citizensinformation.ie/en/employment/equality-in-work/harassment-at-work/#738517

Lenar3556

https://www.boards.ie/discussion/2058357950/legal-bligation-to-report-possible-crime

In the case of the staff member saying that they were assaulted, but don’t wish to report it to Gardai, my understanding is that there is no statutory obligation on anyone in receipt of such information to report this to Gardai.

If there was a similar circumstance but the alleged victim was in fact a child, the provisions of the Children First Act 2015 create a mandatory reporting obligation (to Tusla), but this only applies to ‘Mandated Persons’ as defined by the act. For example a teacher who believes a child may be the victim of sexual abuse is obliged to report this to Tusla. However an electrician who had a similar belief following work at the child’s home wouldn’t be under a statutory obligation to report.

Clearly there are moral, ethical & practical considerations also.

GerardKeating

https://www.boards.ie/discussion/2058357950/legal-bligation-to-report-possible-crime

While you might not have a legal obligation to report the incident to the Gardai, you do have a legal obligation to prove a safe working environment. If there was a second "incident" the company could be liable.

Peregrinus

https://www.boards.ie/discussion/comment/122328563#Comment_122328563

Ther is an obligation to provide a safe working environment, but I don't think whether an employer reports an offence to the police is going to factor hugely in any assessment of whether the employer discharged this obligation. Creating a safe system of work is mainly about what the employer does do, not what he doesn't. Reporting an offence to the Guards does little or nothing to make the workplace safer (especially when the victim doesn't want to engage with the Guards; without the co-operation of the victim there will certainly be no prosecution).

More generally, one of the recognised dangers of a mandatory reporting system is that people who make a report may feel that they don't need to do anything else — they have done what the law requires by reporting the matter to the Guards; it's no longer their problem; they have no further responsiblity; they should leave it to the experts. If there was to be any flavour of that in the context of offences in the workplace, you can see how such an attitude would work against employers focussing on creating a safe working environment.

GerardKeating

https://www.boards.ie/discussion/comment/122328686#Comment_122328686

I was more thinking that the employeer might be liable if they ignored an assult on a employee and a further assult occured.

Claw Hammer

https://www.boards.ie/discussion/comment/122329230#Comment_122329230

Reporting it to the Garda will make no difference. Unless the victimn of the assault makes a statement to the Garda and is willing to give evidence in court, nothing will come of a complaint to the Garda. All the employer can do is take detailed notes and identify the culprit if possible. It is very difficult for an employer to take action if the victim won't go to the garda. It could be someone being spiteful making up an allegation of assault.

Peregrinus

What Claw Hammer said. It seems unlikely that, in the circumstances, reporting the matter to the guards would have had any practical outcome, so it would be hard to argue that not reporting it materially contributed to the risk of a further assault.

What would prevent a further assault would be firing the guilty party. Assault in the workplace is universally recognised as grounds for peremptory dismissal and if somebody assaults a colleague, isn't immediately fired, and then commits another assault I think the employer is in a sticky situation. But that depends on clear proof of the assault — it's one thing if it take place on the shop floor with witnesses around, it's another if a worker complains of assault; the employer's first responsibility is to take the complaint seriously and investigate it, but what happens after that must depend on what emerges in the investigation.

Babyreignbow

The code of practice on sexual harassment at work attached above advises the procedure and policies that can be put in place and is legally admissable in in evidence in proceedings before the courts, wrc and the labour court.

It recommends how to resolve the problem formally and informally by way of complaints procedure or investigation and with respect to statutory rights and sanctions where appropriate.

https://www.ihrec.ie/app/uploads/2022/08/Codes-of-Practice-Sexual-Harassment-FA_Digital.pdf

Page 21 point 85

Claw Hammer

It is an offence to waste garda time. If someone doesn't want to make a complaint to the garda there is an inference that they are making it up and the Garda will discover they have been lying. A person making a complaint has to give evidence as to who assaulted them and where. An employer has to be fail to the alleged perpetrator. That means allowing the alleged perpetrator confront their accuser. If the complainant does not want to be confronted by their accuser the employer is going to have to gather evidence by another means before they can deal with the situation.

Babyreignbow

https://www.boards.ie/discussion/comment/122335740#Comment_122335740

Sexual harassment in the workplace is dealt with in the labour court or the WRC because it's the employer who is liable. Most victims of harassment in the workplace just want it to stop and get on with their jobs and the onus is on the employer to ensure that happens. If it requires investigation into a complaint in order to resolve the situation then that is what they are obliged to do.

(the exceptions to this might be where the 'employee' is a non employee, for example the JobBridge internships denied workers employee rights which meant people had no access to the wrc or labour court for procedure and in my case at least, required making a statement to the guards. The guards didn't really care in that instance as investigating a place of employment is not really within their remit, especially when the employer is a public sector entity. As a result I had to contact local representatives and then write to several ministers to highlight these issues and hopefully contributed to the dissolution of the Jobbridge scheme)

Claw Hammer

https://www.boards.ie/discussion/comment/122337970#Comment_122337970

Wherever it is dealt with a complainant has to co-operate with an investigation. A complainant can't just make an allegation and sit back. Going to the Garda shows their bona fides.

Babyreignbow

https://www.boards.ie/discussion/comment/122339744#Comment_122339744

No, it doesn't. A workplace complaint is a workplace complaint. It's not about seeking a criminal conviction, unless there are exceptional circumstances. The fact the op is seeking information with respect to filling out a report means the complainant has already brought the issue to their senior/reporting officer and it's now the duty of the employer to seek resolution. They can advise the complainant of procedure and begin the process of dialogue/adjudication. That may involve an investigation with questioning or mediation between the parties.

The policies set out above by the ihrec give consideration to statutory rights for all parties, with respect to privacy, fairness and due process.

A lot of people don't go to the guards and it doesn't make their issue less bona fide, they might just not want the hassle of dealing with the guards or having to go though the legal system. Harassment or sexual harassment in a workplace environment might be something as obtuse as someone making sexual innuendo or improper suggestions to physical harassment and inappropriate touching. The guards are unlikely going to seek to prosecute, again, unless it's a much more serious assault. The complainant most likely just wants to work in peace without being groped touched or on the receiving end of verbal slurs or taunting.

There may be a case for issues like being stalked by a colleague now as the law has changed to accomodate it but where possible most workplace harassment is dealt with by the employer/wrc.

(as it happens I was stalked by a line manager, physically followed outside of work and then spent months being taunted by them in work)

BattleCorp

Thanks for the replies.

So many differing opinions in my workplace over this.

Many say report it to the Gardai even if the complaint doesn't want to report it to the Gardai. Many managers want to put mandatory reporting of these incidents to the Gardai into the SOP.

I don't agree with this to be honest. I would encourage the employee to report it to the Gardai but I wouldn't go against the employee's wishes and report it to the Gardai myself if they didn't want it reported to then.

And just to be clear, if they didn't want it reported to the Gardai, I'd still deal with it internally via investigation, and then disciplinary process if warranted. And the employee would get every support available.

Babyreignbow

Well done for taking affirmative action, if only more employers were so keen to engage in the process. The outcome of any investigation doesn't preclude the individual from giving a statement to the guards at any later stage so that option will always be open to them and maybe in time they will feel that they will want to do that. If you are affected by the situation or want more advice you can always contact any of the services listed above for support too.

28064212

https://www.boards.ie/discussion/comment/122344044#Comment_122344044

Who are you in this scenario? Are you a middle manager that this task fell to, or are you owner/MD/C-Level? If the former, report back that this needs to be escalated for higher approval. If the latter, get proper legal advice, don't rely on comments of unknown provenance from an internet forum.

Peregrinus

Your problem is this: if the employer's stated policy is to report complaints of this kind to the guards even if the complainant doesn't want that to happen, that tends to discourage complainants from bringing their complaints to the employer in the first place — they'll be afraid of ending up embroiled in a legal/criminal process that they'd prefer to avoid. And a policy that includes features that work to discourage complainants from reporting sexual abuse is obviously not conducive to a safe place of work.

I'd suggest the policy should be (a) in all cases to to encourage complainants to go to the guards, and (b) for the employer to report to the guards if the complainant agrees to that, but not if the complainant doesn't agree.

BattleCorp

https://www.boards.ie/discussion/comment/122344405#Comment_122344405

I'm just an employee who was asked to help draw up a Policy.

If there's no legal obligation on an employer to report an assault or sexual assault of an employee to the Gardai, then I don't think there's a need to get further advice.

I think it comes down to what's morally right in those circumstances. And my opinion is that I wouldn't be inclined to go against the wishes if the alleged victim.

Claw Hammer

https://www.boards.ie/discussion/comment/122340255#Comment_122340255

So you are saying a complaint can be investigated even if the complainant doesn't co-operate. There is a balance of rights. The person against whom a complaint is made has a right to fair procedures and natural justice. Complaints can't be left dangling but a complainant can't used the procedure mischievously either.

Babyreignbow

https://www.boards.ie/discussion/comment/122354985#Comment_122354985

The confusion here I think is the idea that an investigation is the respobsibility of the gaurds. In a criminal investigation that might be the case but with respect to emplyment law, an employer has a duty to investigate any complaints brought to their attention which affects the health and safety (or violates any employment legislation or company policy) of their employees. All this information is in the handbook available through the ihrec. An employer failing to deal with these complaints adequately can find themselvse before the labour court or the wrc.

It doesnt prevent the complainant from seeking criminal prosecution at any other time.

Claw Hammer

https://www.boards.ie/discussion/comment/122355050#Comment_122355050

No matter who conducts the investigation it must be fair. If the complainant doesn't co-operate, the employer can't progress the investigation. All they can do is review their systems so that they can't be accused of a systemic failure.

Babyreignbow

https://www.boards.ie/discussion/comment/122355069#Comment_122355069

Of course it should be fair, I've already stated the procedure as laid out above with respect to fairness, privacy and statutory rights to everyone involved.

(as it stands I'd be suspect of anyone coming to boards claiming to be an employee and asking advice on how to hande sexual abuse in the workplace. Although maybe it's a small private employer, like a shop or small business which is not familiar with employment law or human rights)