Commonly an overlooked part of the disciplinary process, the disciplinary investigation can often be the difference between a dismissal being fair and unfair. A detailed investigation will give an employer the evidence necessary to support any allegations of misconduct, will allow the employer to determine whether there is a case for the employee to answer, and will help to demonstrate that a dismissal was a reasonable one. A key part of any investigation will be the interviewing of any relevant witnesses, including the employee accused of misconduct.
The amount of investigation undertaken will depend on the circumstances of each case, but it must be sufficient (a) to enable the chair of any subsequent disciplinary hearing to form reasonable grounds for believing or disbelieving the allegations against the employee and (b) to enable the case to be put to the employee in a manner that makes it clear what is being alleged. The investigation must be even-handed, and should not simply be a search for evidence against the employee. Evidence in the employee’s favour should also be sought.
Recent Tribunal Decision – Mrs Gough
This has been highlighted in the recent Employment Tribunal claim pursued by Mrs Gough against East Midlands Crossroads – Caring for Carers. Part of her role involved her helping to run activities for disabled clients, one of which was a weekly pottery painting class.
Mrs Gough’s line manager told her in July 2016 that the pottery supplier would not be able to send somebody to run one of the classes due to them attending a funeral. Mrs Gough agreed to do it, and drove to the supplier to pick up the relevant materials.
When she arrived, the supplier told her that the classes were not making economic sense, given the distance to the day centre, and the low turnout. Mrs Gough suggested that there were ways to change the classes, but the supplier would need to speak to the person who booked them. The pottery supplier did not turn up for lessons for the next two weeks.
Also in July 2016, Mrs Gough was asked to invite a former worker to a colleague’s leaving party, which she did.
Shortly after her conversation with the pottery supplier, Mrs Gough was summoned to a disciplinary hearing. It was alleged she had:
- told the supplier not to bother sending their own representative going forward; and
- invited a small group of current and former staff to a party that the day centre might not have insurance for.
The disciplinary hearing was scheduled to take place two days later but it was postponed because Mrs Gough was on holiday. During the time she was away, there was another pottery painting lesson booked, which the supplier did not attend. The leaving party had also gone ahead and the employer had not intervened to stop it from taking place.
In August 2016, the day before Mrs Gough was due to return from holiday, her employer called her while she was out with her family to ask her where she was. It turned out that the disciplinary hearing had been booked for this day, but Mrs Gough said she had not been informed.
Mrs Gough was asked if she would like to do the disciplinary hearing by telephone, which she declined, and the hearing, which involved an outsourced HR professional, continued in her absence.
Mrs Gough was dismissed on the basis that she had caused confusion with the pottery supplier, had created a safety risk by inviting people to a leaving party, and had caused the day centre reputational damage.
Mrs Gough’s appeal was unsuccessful, and although she was given a second chance to appeal, she thought it would be pointless. She brought a claim for unfair dismissal and wrongful dismissal.
The Outcome – Inadequate Disciplinary Investigation
The claims were successful. Although the employer genuinely believed that Mrs Gough’s conduct amounted to gross misconduct, this belief was based on an investigation that was “wholly inadequate”. The Judge also gave his view that the outcome could not even have fallen into a range of reasonable responses available to the employer. There was no investigation, and there was no evidence sought in respect of the allegations against Mrs Gough.
The Judge went on to comment that the fact that the first disciplinary hearing went ahead in Mrs Gough’s absence was procedurally unfair, and by the time the appeal hearing took place, the employer was “determined to dismiss Mrs Gough, whatever she might have said in her defence.
The hearing was considered to be a sham, and Mrs Gough was awarded compensation.
Points to Note
- Investigations are the cornerstone of any successful disciplinary procedure, and a failure to investigate thoroughly at the start is often likely to lead to trouble for employers later.
- Even if a case is believed to be “cut and dry”, any disciplinary action should always start with an investigation.
- Following the investigation, the investigating officer should ask if they believe there is a case to answer. If so, the process can progress, and if not, that may bring proceedings to an end.
- Employers should make sure that they have disciplinary policy in place giving details of how the process should progress from the start with an investigation, to the end with an appeal. All line managers should also be trained on how to handle disciplinary issues in a fair and objective way.