Was an employee unfairly dismissed when an investigation report was altered by removing views helpful to the employee on the advice of the employer’s solicitor?
No, according to a recent ruling of the Employment Appeal Tribunal (EAT).
The Claimant was a university professor who admitted to having a sexual relationship with one of his students.
Under the relevant statute governing the University, the Claimant could only be dismissed for conduct of an “immoral, scandalous or disgraceful nature incompatible with the duties of the office or employment.”
A senior University employee and an HR adviser were appointed to carry out an investigation. They produced a draft report. Following a review by the University’s solicitor, the final version of the report omitted some opinions that were helpful to the Claimant, including an opinion that there was no evidence that the Claimant’s conduct had been immoral, scandalous or disgraceful, or that it was an abuse of power or breach of duty.
The Claimant was dismissed for gross misconduct after a disciplinary hearing.
He brought an appeal against his dismissal. The draft investigation report which contained the deleted opinions was reviewed at the appeal stage, but the Claimant’s appeal against his dismissal was not upheld.
The Claimant brought a claim for unfair dismissal.
The tribunal dismissed the Claimant’s claim, ruling that his dismissal had been fair.
The tribunal decided that it was fair for the University to ask their solicitor to advise the investigators on the draft investigation report and for the investigators to follow that advice by removing their opinion about whether the Claimant’s conduct amounted to misconduct as defined by the employer’s rules, which was a judgement that should be left to the disciplinary panel.
There was no suggestion that any evidence had been withheld from the investigation report and therefore not put before the disciplinary panel.
The EAT dismissed the Claimant’s appeal. The EAT agreed with the tribunal that it was appropriate for the University’s solicitor to advise that the investigation report should be restricted to factual findings and to a conclusion as to whether there was a prima facie case to answer. It was for the disciplinary panel to make a judgement about whether the conduct amounted to misconduct under the University’s statutes.
In the EAT’s view, it was clear that the tribunal had considered the overall fairness of the whole process followed by the University, including the appeal stage, and had been entitled to find that the dismissal was fair.
Dronsfield v The University of Reading UKEAT/0255/18, 2 October 2019
This case is a good reminder of the extent of the conclusions that should be set out by investigators in their report. There is also good advice in the Acas Guide to Conducting Workplace Investigations which recommends that:
- The investigation report should summarise the factual findings of the investigation.
- The investigator should restrict their conclusions to recommendations on whether the employer should take formal action, such as holding a disciplinary hearing. The investigator should not suggest a possible sanction or prejudge the outcome of the disciplinary hearing (page 32).
- The report should reflect the investigator’s own conclusions. While an investigator may seek advice from a third party such as HR, the conclusions should be their own (page 30).
Investigators have a limited role in making factual conclusions and they should not stray into offering their opinions as to the seriousness of the employee’s actions, which is a judgement that should be left to the disciplinary panel.
Warning: this news item is not a substitute for legal advice. The information may be incorrect or out of date and does not constitute a definitive or complete statement of the law. This news item is not intended to constitute legal advice in any specific situation. Readers should obtain legal advice and not rely on the information in this article.