Inquests from an Employment Perspective: How to Manage Issues Arising from Inquests

In this article, we examine the range of employment considerations and issues that can arise following an unexpected death. 

What is an inquest?

An inquest is an investigation into the death of a person who has died from unknown or unnatural causes. A Coroner leads the investigation into an unexpected death, and it is a Coroner’s role to answer four key questions:

• Who died?
• Where they died?
• When they died?
• How they died?

Interested Persons (IPs) are also required to take part in the inquest. The family of the deceased is almost always granted IP status and other IPs are often agencies and organisations who were involved with the person in the lead up to their death. Examples of frequent other IPs include local authorities, GP practices, hospitals, the police, ambulance services, care homes, and housing providers. 

The length of inquests can vary. Some are dealt with as documentary inquests, i.e. there is no live evidence and the Coroner considers the papers in front of them, or they can take weeks, if not months, and have numerous IPs and witnesses called to give evidence.

There are numerous risks involved with inquests, including regulatory and satellite civil and criminal litigation, as well as negative publicity which can be exacerbated by witness evidence. 

Witnesses in an Inquest

It is important to note that inquests do not fall within the civil or criminal branches of the legal system, and they are governed by their own rules. Inquests are not litigation but the forum for the Coroner to determine who, when, where and how they died. There is some flex in this because if Article 2 is engaged, the scope widens. 

When considering the way that witnesses in inquests are dealt with, the key point is that a person who is required to give evidence is the Coroner’s witness, not the witness of one of the IPs. This differs to civil or criminal cases as the witnesses are chosen by the parties. 

What this means is that the Coroner decides who they want written statements from, who they will call to give evidence and if they are willing to make any changes to the running of the inquest to accommodate for that witness (for example, if they have work or childcare commitments). Whilst the IPs can make submissions or representations, the Coroner makes the final decision. 

There are numerous factors to consider as an employer when the Coroner has decided who they would like evidence from, examples include:

• Whether that individual is still a member of staff;
• The vulnerability of the witness;
• Whether there are any conflicts of interest or if the witness has displayed animosity towards the organisation; and
• How any witnesses will be supported by the organisation.

There are also numerous issues that often arise from an employer’s perspective, which are considered below.

Employment aspects specific to an inquest

The four main employment related aspects that often overlap with inquests are:

• Disciplinaries: did an employee commit an act of misconduct or gross misconduct in the lead up to the death?             
• Performance issues: did an employee fail to perform their role to the expected standard in the lead up to the death?
• Grievances: does an employee have a complaint/grievance of how the circumstances leading up to or surrounding the death was handled by their employer?
• Sickness related absence: has an employee since gone off work on sickness related absence following the death (i.e. for PTSD, anxiety or depression)? 

How to handle such employment issues?

The way employers need to handle these overlapping employment related aspects during an inquest is often a careful balancing act. 

Employers may be relying upon employees involved in the circumstances leading up to the death to provide witness evidence at the inquest. Therefore, there is often hesitancy as to how employers handle the employment aspects in advance of an inquest, and whether any such actions could impact the witnesses’ statement at the inquest to the detriment of the employer. We have addressed each employment aspect in more detail below. 

Disciplinaries & Performance Issues 

There may be circumstances following an unexpected death where an employer is an IP and one (or some) of its employees are being called as witnesses at the inquest and there are ongoing disciplinary or performance concerns regarding the employees, potentially regarding their actions in respect of the death. 

There is a careful balancing act between when, how and whether employers pursue disciplinary or performance issues against its employees in such circumstances. 

If an employer does take such action against an employee, and the employee is dissatisfied with the outcome of such a process, there is the possibility that they could use the platform of the inquest to detrimentally impact the employer’s position as an IP and its reputation by openly criticising the employer.

It is always advisable for employers to consider the circumstances on a case-by-case basis. If the alleged misconduct is of relatively minor significance and had no impact on the circumstances leading up to the death, the employer may choose to deal with the matter once the inquest has concluded to reduce any risk of the employee using the inquest as a platform as set out above. 

However, if the disciplinary or performance issues are so serious that the employer is of the opinion that to take no action could result in ongoing risk to its residents, customers, reputation or regulatory compliance, relevant disciplinary and/or performance investigations should be commenced as soon as possible. 

Grievances 

In all circumstances, grievances lodged by employees should be investigated thoroughly, swiftly and impartially in accordance with the employer’s internal policies. 

The one slight distinguishing factor in circumstances where the employee who has lodged the grievance is also being called as a witness at an inquest, is that it is usually advisable to try and investigate and issue a grievance outcome in advance of a final inquest. This is so the employee feels that their concerns have been fully investigated and addressed prior to the inquest taking place, which could minimise the risk of that employee using the inquest as a platform to air their own personal grievances against the employer, which may or may not be related to the death being investigated. 

Sickness related Absence 

In all circumstances, sickness related absence should be dealt with compassionately. However, in circumstances where an employee has been involved in the death of a resident (i.e. discovered a resident or been in contact with the resident shortly before the death), employers need to ensure that they are providing sufficient support to the employee in how to handle that experience. 

This could include offering to pay for therapy or increasing contractual sick pay absence on a one-off basis. It would also regularly include making swift referrals to Occupational Health to see if there are any steps employers can take to reduce the impact of the experience on the employee in their working environment (i.e. by amending specific duties for a period of time).  

Relationship with witnesses 

Whilst it is always best practice to maintain positive working relationships with all employees, it is even more pertinent to do so with employees that are being called as witnesses as part of an inquest. Particularly where they are going to be giving evidence in respect of the employer’s actions in the circumstances surrounding a death. 

Employers need to ensure, as much as is reasonably possible, that their employees feel supported and considered in advance of, and during, inquests. Employers should therefore consider how they handle the employment related aspects as set out above on a case-by-case basis when dealing with employees who will be providing witness evidence at inquests.

Should you need any advice in respect of the above or inquests generally, please do not hesitate to get in touch with Melissa Chuttur, Narin Masera or Charlotte Greatorex.