News & Insights

Investigation error?

Jackie Denham reports on whether omitting evaluative conclusions from a draft investigation report was found to be unfair and unreasonable.

In a recent case heard at the Employment Appeal Tribunal (EAT), it was considered whether an employer conducted a fair and reasonable disciplinary procedure following an employee’s alleged misconduct.

In this case the University of Reading dismissed Dr Dronsfield, a lecturer, for a disciplinary issue relating to a sexual relationship with one of his students. Under the policy, employees can only be dismissed if conduct is “immoral, scandalous or disgraceful nature incompatible with the duties of the office or employment”. In the original draft report the investigation officer stated their opinion about whether they believed the evidence pointed towards a breach and also conclusions as to whether the employees’ actions amounted to an abuse of power or breach of duty of care. The university’s in-house lawyer struck out this wording from the final report because it was not the role of the investigator to make this conclusion, that was a matter for the disciplinary panel.  The investigator accepted this advice and amended their report.

The disciplinary panel ultimately concluded that his behaviour was immoral, scandalous and disgraceful and he should be dismissed and the Vice Chancellor agreed and followed this recommendation. During this process Dr Dronsfield had seen the amended report and the amendments to the wording surrounding the nature of his actions. As a result, he made a claim for unfair dismissal. He argued that it was not reasonable for the University to amend the report and that the alterations by the in-house lawyer made the disciplinary process following unfair.

The EAT decided that the in-house lawyer had not played an inappropriate role in the disciplinary process, there was no suggestion of impropriety. She had advised the investigator to make amendments to clarify their role in the process and ensure the decision was made by the appropriate people.  There was no pressure on the investigator to make the amendments, they were comfortable accepting the advice.  The summary of evidence available was not amended.

This case highlights a number of key points. Firstly, it is a good reminder for employers to avoid making evaluative conclusions at any stage of the investigation process. Investigation is a fact-finding exercise to collect all the relevant information and the role of the investigator is not to conclude the guilt of any party but to investigate if there is a case to answer and summarise all the relevant evidence.  Secondly, employers should make sure adequate training and policies regarding the conduct of investigations is in place to help reduce the risk of any challenge to the process followed.  It is fair and reasonable for a solicitor to advise on the disciplinary process but in giving that advice they must not cross the line into becoming a decision maker or withhold any evidence from the disciplinary hearing manager and the investigator must retain full ownership for the contents of their report at all times.