Two recent employment cases have highlighted the importance of conducting investigations into employee misconduct correctly. An investigation should take place prior to any disciplinary action being taken by the employer both to comply with the Acas Code of Practice on disciplinary procedures and also the principles of fairness.
Can a flawed investigation breach the implied term of mutual trust and confidence?
In short, yes. In Retirement Security Ltd v Miss A Wilson (UKEAT/0019/19), the Employment Appeal Tribunal held that an employer’s flawed disciplinary investigation entitled the employee to resign and claim constructive dismissal. In this case the claimant was employed as a manager of a housing development for elderly people. In January 2018, three managers, who reported to the claimant, made formal complaints against the claimant to her line manager. She was immediately suspended and was invited to a meeting to discuss the allegations made against her. The meeting was not a disciplinary hearing but was an investigatory meeting. As the letter was sent to the wrong address, she had less than 24 hours to prepare for the meeting.
During that investigatory meeting, the claimant was told that her line manager would support her as a companion but was later notified that the line manager was to act as the chair of the meeting. Ultimately the line manager absented herself due to a conflict. In addition, no documents were given to the claimant prior to the meeting. The claimant alleged that the employer had no confidence in her and had not given her a fair opportunity to answer the allegations and as a result she resigned. She brought a claim to the employment tribunal for constructive dismissal.
The tribunal held that the dismissal was unfair and that there had been a fundamental breach of trust and confidence. It held that the investigative process was “flawed”. The limited information given and the offer of a companion who then became a chair of a formal process, made the investigatory process unfair. The employer appealed, arguing that the tribunal had not considered the fair reason for the dismissal and that it had transposed the requirements of procedural fairness in a disciplinary hearing on to an investigatory meeting.
The EAT dismissed the appeal and held that although the Acas Code does not require the same standards of procedural fairness in relation to investigations as it does with formal disciplinary hearings, as the claimant had been suspended, this was clearly a formal part of the process. The investigation proceedings had been so flawed as to amount to a breach of the implied term of trust and confidence. In addition, the employer had not substantiated the fair reason for the dismissal.
This case clearly shows that employers should ensure that any disciplinary investigation is conducted fairly and reasonably. What amounts to a fair and reasonable investigation will vary depending on the circumstances of the case, but such an obviously flawed investigation meeting can, as a matter of law, amount to a breach of the implied term trust and confidence. Employers should avoid “ambushing” employees (in this case the employer admitted during the hearing that the meeting was an ambush) and make sure that the employees have sufficient time and information to prepare for any investigatory meeting.
What is the role of advisers in the investigation process?
The second case Dronsfield v The University of Reading (UKEAT/0255/18/LA) concerned the conduct and input into an investigation in a disciplinary situation of in-house advisers, either human resources professionals or in-house lawyers.
An employer may have a disciplinary policy which describes those within the organisation who are to conduct the investigation. This will generally be a manager from outside the employee’s own reporting line. The investigator should also clearly not be involved in the circumstances relating to the investigation and should not then be involved with the disciplinary hearing. Advice may be sought by the investigator from internal advisers. Generally any advice given should be limited to questions of law, procedure and process and should not consider the culpability of the individual.
In this case, an academic was dismissed following an undisclosed relationship with a student. Under the rules of the university, an individual could only be dismissed if conduct was of an “immoral, scandalous or disgraceful nature [and] incompatible with the duties of the office or employment”. Another academic and an HR advisor were appointed to carry out an investigation into the conduct. An initial version of the investigation report stated that there was no evidence to suggest that the conduct of the claimant amounted to conduct of an immoral, scandalous or disgraceful nature. However, the subsequent version omitted these comments and evidence showed that advice had been given by the in-house legal advisor that the investigators should not include their own finding, but should focus on whether there was evidence to support the allegations following their investigation. The evaluation of whether that evidence met the level of conduct required should only be evaluated by a subsequent disciplinary panel, and not by the investigators. One of the key parts of the claimant’s case was that the role of the in-house lawyer had been unfair. However, the tribunal found that it was objectively fair and reasonable for the respondent to have a solicitor advising them in those complex matters.
On appeal, the EAT held that the employment tribunal had been correct to find that the final version of the report represented the investigators’ conclusions, and that it was fair and reasonable for the respondent to have a solicitor advise on the process. The investigators’ role is simply to determine if there is a case to answer which will then lead to a full disciplinary hearing. HR or in-house lawyer’s advice should be limited to advice on this process. If their advice means that the investigatory report is effectively produced by them, then there is a risk that any dismissal may be found unfair. In this case, the legal advice had not crossed that line. The lawyer’s involvement did not lead to material evidence being withheld from the disciplinary panel. The report had not been changed to make dismissal more likely, and no pressure had been placed on the investigators to change the report. The employer had also appointed an external barrister to hear the employee’s appeal, and the barrister had considered the matter afresh, including all versions of the investigation report.
This decision does not provide complete latitude for lawyers (whether they are in-house or external) or managers to act as they wish to rewrite investigation reports or place pressure on investigators to reach certain conclusions – indeed, investigators must retain full ownership of the report. Lawyers can be instructed and provide advice including proposing amendments to an investigation report, but only to the extent this is limited to advising on compliance with internal procedures and the general law – the investigator must then decide for him or herself whether they wish to accept such advice – proceeding in this matter should not then render any subsequent dismissal unfair.