An investigation is central to a fair disciplinary process: if you dismiss an employee for misconduct, you will risk an unfair dismissal claim if you don’t carry out a reasonable investigation.
But what does a reasonable investigation look like? This was the question considered recently by the Employment Appeal Tribunal in NHS 24 v Pillar. Unusually, it was alleged that the dismissal was unfair because the investigatory report contained too much detail, rather than too little. Ms Pillar argued that her dismissal was unfair because the investigation report included details of two previous incidents of misconduct which had not led to disciplinary action.
Can a dismissal be unfair because an investigation is too wide?
The EAT accepted that in extreme circumstances an overzealous or otherwise unfair investigation could render a dismissal unfair. However it is much more common for dismissals to be unfair due to insufficient investigation.
On the facts of the case, the dismissal was not unfair because of the level of detail in the investigation report. This was not surprising given that Ms Pillar admitted to the tribunal that the previous incidents were relevant material for the employer to consider when coming to a disciplinary decision on the third incident.
Exclusion of the relevant material by the investigating officer would have been a serious omission…It was for the dismissing officer to decide how to treat that background information and to decide whether it would be fair to rely on it, to any extent, in deciding whether to dismiss the claimant.
What is the difference between the role of the investigator and the disciplinary hearer?
The EAT also highlighted the important difference between the role of the investigator and that of the disciplinary hearer. The investigator must establish the facts of the case and decide if there are grounds for convening a disciplinary hearing, without communicating to the disciplinary hearer whether they consider an individual to be ‘guilty’ or ‘innocent’. The disciplinary hearer should then consider the matter independently of the investigator’s conclusions and decide whether to impose a disciplinary sanction.
When can previous incidents be taken into account?
Disciplinary hearers need to be careful about what they rely on when coming to a decision:
• Active previous warnings can be taken into account, unless they appear to be ‘manifestly inappropriate’;
• Expired warnings cannot be used on a totting up basis to justify dismissal but can be considered if the circumstances justify dismissal anyway (e.g. when deciding whether to mitigate);
• Previous misconduct which has not resulted in a warning can potentially be relevant depending on the circumstances, including what the employee was told at the time.
How much investigation do we need to carry out?
What amounts to a reasonable investigation will depend on the circumstances including the severity of the allegations. Usually it will involve:
• Identifying the issues;
• Meeting the employee and relevant witnesses;
• Investigating any explanation given by the employee;
• Considering relevant documents and physical evidence e.g. emails and CCTV footage (bearing in mind data protection issues);
• Gathering information on the employee’s length of service, performance and disciplinary history;
• Checking if similar situations have occurred before and how they were managed;
• Considering whether the employee was aware that their actions might amount to misconduct; and
• Preparing an investigation report.
If you would like to discuss anything raised in this blog, please get in touch with your usual Brodies contact. Workbox users can also access detailed guidance on dealing with misconduct, including a suggested five step disciplinary investigation process.
On October 9, 2017