Employment and Immigration Law Update – Investigations into disciplinary allegations

The Employment Appeal Tribunal (EAT) has recently considered whether there is a requirement for employers to hold an investigation meeting prior to a disciplinary hearing.

Sunshine Hotel Ltd t/a Palm Court Hotel v Goddard, UKEAT/0154/19

Facts

The claimant was dismissed following an allegation that he had fallen asleep whilst on duty. He was called to an investigatory meeting, which in fact turned out to be the disciplinary hearing. The employer relied on CCTV evidence to show that the claimant had fallen asleep, and he was dismissed at the conclusion of the meeting.

An employment tribunal upheld the claim for unfair dismissal, but made a reduction to the claimant’s compensation for his contributory fault (25%) and a Polkey reduction of 50% to reflect the likelihood that dismissal would still have been the outcome had a fair procedure been followed. An uplift of 5% was awarded to reflect the employer’s failure to follow the Acas Code. The employer appealed on the basis that a failure to hold an investigatory meeting did not necessarily render the dismissal unfair.

EAT decision

The EAT dismissed the employer’s appeal, finding that the tribunal had applied the correct principles in reaching its finding of unfair dismissal. The decision was not based on a suggestion that a separate investigation meeting and disciplinary hearing was required in every case. Had the decision been based on this assumption, it would have been wrong. The employer in this case had failed to carry out a sufficient investigation into the allegations to make the dismissal fair.

Consequences

This decision confirms that an investigation meeting is not necessary for a fair dismissal, although in practice it will be relatively rare for such a meeting not to take place in advance of holding a disciplinary hearing. Under well-established principles for a fair conduct dismissal, as set out in the case of British Home Stores v Burchell, it is necessary to carry out such investigation as is reasonable in all the circumstances of the case. This will often, but not always, require an investigation meeting to be held with the employee in advance of the disciplinary hearing.

The Acas Code states (paragraph 5):

It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing.

This article is from the January 2020 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. For further information please contact Liz Stevens or another member of Birketts’ Employment Law Team.