31 January 2020

Where suspicion arises that an employee has carried out acts of misconduct, the need to properly investigate that suspicion is a fundamental requirement of employment law. The question often arises, though – does that investigation have to include an investigation hearing with the employee, or can the employer move straight to a disciplinary hearing?

This was explored in the recent Employment Appeal Tribunal (EAT) decision of Sunshine Hotel v Goddard. The appeal to the EAT was based on the suggestion that the Employment Judge who heard the case initially had got the law wrong, by stating that it is necessary to have a separate investigation hearing to give the employee the chance to state his/her case before being invited to a disciplinary hearing, and the failure to do so made the dismissal unfair.

The EAT concluded that the Employment Judge had not said this at all, but clearly the EAT was in agreement with the point that there is no absolute legal requirement to have an investigation hearing.

Rather, the obligation on the employer is to carry out a reasonable investigation. As set out in the leading authority of Burchell, the employer must not just believe the employee was guilty of misconduct but must

“[have] in his mind reasonable grounds upon which to sustain that belief [and have] carried out as much investigation into the matter as was reasonable in all the circumstances of the case.”

That will vary from case to case but it needs to be an impartial and thorough investigation. It has been said that the investigation should focus just as much on looking for “exculpatory” evidence as it does on looking for evidence that condemns the employee. Any defence stated by the employee should be investigated to such extent as is reasonable. The person carrying out the investigation should, where feasible, not be the same person who chairs the disciplinary hearing. The findings of the investigation should be clearly disclosed to the employee before the disciplinary hearing, along with the evidence.

In terms of whether there is an obligation to have an investigation hearing with the “accused” employee, it will not always be necessary and the ACAS Code (which all employers must follow) makes that clear:

“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”

In other words, it varies from case to case. It is always a question of whether an employer acted reasonably and in some instances, it could be unreasonable not to have an investigation meeting. But in other cases it may be entirely reasonable not to do so.

However, if the employer has a disciplinary policy or procedure that requires an investigation hearing with the employee, that policy should always be complied with (except perhaps for short-serving employees, but advice should be taken). Employers are expected to follow their own policies, and failure to do so will often make a dismissal procedurally unfair. Where an employee is unfit or otherwise unable to attend an investigation hearing, that will pose additional challenges.

Cases where employees are dismissed for misconduct are among the most common types of claim brought to an employment tribunal. If the employer’s procedure has been defective, they will immediately be on the back foot in defending the claim, so it is important that proper advice is sought

Our team of specialist employment lawyers are happy to guide you through the process.

 Contact: Douglas Strang, Senior Associate dst@bto.co.uk T. 0141 221 8012