Employment and Immigration Law Update – Conclusions in investigation reports

The Employment Appeal Tribunal (EAT) has considered whether an employee was unfairly dismissed following amendments made to a draft investigation report.

Dronsfield v The University of Reading UKEAT/0255/18

Facts

The employee, a university professor, was subject to disciplinary proceedings following allegations of a sexual relationship with a student, which he admitted. Following an investigation, he was dismissed for gross misconduct on the grounds that his conduct was “immoral, scandalous or disgraceful”, in contravention of university regulations. An appeal against his dismissal was unsuccessful.

As a result of a freedom of information request, the employee had sight of previous drafts of the investigation report that had expressed the opinions that there was no evidence that his conduct had been immoral, scandalous or disgraceful, or that it was an abuse of power or breach of his duty of care towards students. These opinions had been omitted from the final report on the advice of the university’s in-house lawyer.

The employee brought a claim for unfair dismissal, which was dismissed by an employment tribunal. On appeal, the EAT remitted the case to the tribunal to consider the reasons why the original comments had been left out of the investigation report. The employment tribunal once again held that the employee’s dismissal had been fair. It was objectively fair and reasonable for the university to have their solicitor advise the investigators, and it was sensible given the scope for legal error. It was reasonable for the investigators to act on that advice and remove the evaluative opinions of the individual’s conduct from the report; it did not mean that a false or incomplete position was set out in the report. The employee appealed again.

EAT decision

The EAT dismissed the appeal, upholding the tribunal’s decision that the dismissal was fair. The investigators had accepted the solicitor’s advice that judgements about whether the employee’s conduct amounted to an abuse of power, a breach of duty, or conduct of an immoral, scandalous or disgraceful nature should properly be left to the disciplinary panel.  The report had not been changed in order to make dismissal more likely and there was no suggestion that any evidential material had been withheld from the investigation report.

Consequences

This decision provides a reminder of the scope of a disciplinary investigation and the extent of the conclusions that should be set out in the investigation report. An investigator should establish the facts and whether there is a case for the individual to answer. Evaluative opinions and decisions on the outcome of a disciplinary hearing should be left to the disciplinary panel. This distinction can be difficult to maintain in practice, which means that it is important to identify the precise allegations and determine the scope of the investigation at the outset. Those who are responsible for carrying out disciplinary investigations should familiarise themselves with the Acas guidance on conducting workplace investigations.

This article is from the October 2019 issue of Employment and Immigration Law Update, our monthly newsletter for HR professionals. To download the latest issue, please visit the newsletter section of our website. Law covered as at October 2019.

The content of this article is for general information only. For further information please contact Liz Stevens or another member of Birketts’ Employment Law Team.