We hear reports weekly of the increased risk of terrorist attacks. The current level of threat to the UK from international terrorist attack is classed as severe by the security forces, meaning that an attack is highly likely. The Home Office, the Metropolitan Police Service, and MI6 have all urged UK citizens to be on the alert for suspicious activity.
The government website gov.uk contains guidance on how to report terrorist activity, the Met operates an anti-terrorist hotline, and the Home Office provides a route for online terrorist activity to be reported. Unless an individual wants to disclose their identity, all such reports can be made anonymously.
But the issue becomes more fraught if an employer reports an employee. So how should this be conducted?
What should employers do if they spot suspicious behaviour?
Firstly consider what may constitute suspicious behaviour. The Met has a list of examples, and those most likely to occur in the workplace are:
- Suspicious car rental, purchase or sales
- Owning multiple passports or ID documents bearing different names
- Having large numbers of mobile phones
- Possessing certain photographs – perhaps of buildings (anything that suggests the individual is scrutinising a potential security target)
- Chemicals, masks and goggles – has an employee been seen carrying these (or perhaps with these items in their vehicle)? Has the employer experienced quantities of these items going missing?
- Credit card fraud
- Hits on certain related websites
- Unusual travel – has an employee engaged in frequent travel and been vague about the destination or purpose of a trip?
Employers who notice activity of this nature should use one of the reporting mechanisms mentioned above. Organisations that receive reports from employees concerned about colleagues’ activities have the option of either reporting the complaint secondhand or advising the person who witnessed the suspicious activity to report it themselves. However, it's preferable for the employer to report the concerns directly so they are confident appropriate action has been taken.
Risk of doing nothing
Some employers (for instance education providers) have a statutory duty to prevent people from being drawn into terrorist activity; this is called the Prevent Duty. Most commercial organisations will not be subject to the Prevent Duty, but there are two key reasons an employer will want to avoid doing nothing:
- Trust and confidence and health & safety risks – if a colleague has reported genuine concerns about a fellow employee the employer should take sensible action. Doing nothing does not act in accordance with the implied duty of trust and confidence owed by employer to employee (and vice versa). There is a risk of constructive dismissal claims from staff who report concerns of employers doing nothing. There is also the possibility that an employer could be found liable for failing to provide a safe place of work. Another potential problem is that employees worried about working alongside suspicious individuals may find the situation sufficiently stressful that it affects their health.
- Difficulties in ending the employment relationship – it will usually be preferable for an employer to report the employee’s activities and at the same time take their own disciplinary or dismissal action if justified, rather than to do nothing and face the problems that follow an employee’s arrest. It can also be very difficult to communicate a decision to terminate employment if the employer cannot locate the individual because they are in the prison system (although in almost all cases it is acceptable for the employer to stop pay from the point the employee fails to attend work).
Risk of getting it wrong
As with everything in life, a balance has to be struck. Employers should be aware that there are no special circumstances in cases linked to terrorism. Employees should be treated fairly and all decisions should be based on reasonable evidence after a reasonable investigation.
To avoid claims of unfair dismissal, as well as discrimination on grounds of race, religion or belief, employers considering disciplinary action need to have sound evidence of a potential risk, or reasonable evidence that the employee has engaged in misconduct or has breached trust and confidence.
Jennifer Nicol is a partner at Doyle Clayton Solicitors