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Getting disciplinary investigations right is really important. Not only to make sure the right person is disciplined for the right reason, but also if the matter ends in dismissal, your clients could end up losing an unfair dismissal claim. For a conduct related dismissal was fair and reasonable (required under the Employment Rights Act) and followed a proper process (required under the Acas Code of Practice on Disciplinary and Grievance), your client would need to show that:
• they genuinely believed that the employee committed the alleged offence
• that belief is based on reasonable grounds, after an appropriate investigation
• the investigation was reasonable in all the circumstances.
When your client is faced with a conduct issue, the need for an investigation is critical. It could be as simple as a discussion with an employee, especially where there’s no case to answer or an informal word would sort it out. However, it’s not always that straightforward, and in more serious cases a full and thorough investigation will be needed.
Firstly, the accused should know the case against them, and that will be built during the investigation.
It might be that the employee admits the misconduct, and your client is tempted to skip straight to disciplinary. However, they still need to know of any mitigating circumstances, if the accused has been influenced to admit their guilt, if they’re even telling the truth or if they have some ulterior motive. Without finding this out, the outcome could be unreliable, and your client be at risk of a claim, or of further misconduct if the true culprit isn’t found.
It’s also important for your client to look at every angle when investigating misconduct, even if it means adjourning a disciplinary hearing for further investigations. For example, in First Bristol Ltd v Bailes [2013] a bus driver with long service and a clean record was dismissed for failing a drugs test. During the appeal the driver raised whether the fact they had handled banknotes (which are generally known to be contaminated to some extent by cocaine) and eaten sandwiches shortly after doing so meant that they might have unknowingly taken in cocaine. The drive paid for a hair strand test which showed they were not a cocaine user.
The tribunal said that the dismissal was unfair because the employer didn’t follow up on the banknote angle. On appeal, the employment appeal tribunal said that bearing in mind that there was initial disbelief that the driver had taken cocaine, they weren’t suspended, their long service and the results of the hair strand test (which cost the employee a significant amount) it would have been reasonable for the employer to follow this up, and so the dismissal was unfair.
In summary, the importance of a fair and thorough investigation cannot be overstated. It’s the only way to get a fair dismissal for conduct, and I’s important for employers who want to get to the bottom of issues in their business.
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