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Case update (3): Unfair Dismissal and Investigations

What do we already know?

We updated you in our August 2016 Newsletter (Case update (2): Unfair dismissal:  HR teams careful where you tread…) on the case of Dronsfield v University of Reading.

The EAT confirmed that HR’s involvement in a disciplinary investigation, which goes beyond simply providing advice as to process, can compromise the fairness of the dismissal.

The EAT found that the investigation report had been heavily influenced and amended by the University’s HR and in-house legal advisors and, as a result, the final version of the investigatory report omitted various findings which were favourable to Dr Dronsfield.  Although the investigating officer had signed off on the final report, the EAT felt that standards of objective fairness had been compromised.

The EAT remitted the case to a fresh Tribunal to consider why the investigating officer had changed his views on the fault of the employee, and whether he had been unduly influenced by the HR and in-house legal advice.

What’s new?

The decision of the fresh Tribunal was that Dr Dronsfield was fairly dismissed, despite changes made to the investigation report on the advice of HR and in-house legal advisors. Dr Dronsfield appealed this new decision.

The EAT dismissed Dr Dronsfield’s appeal, as set out below.

Facts:  The employee, Dr Dronsfield, was a professor at Reading University, and was bound by the university’s policies and procedures. One of these Policies dealt with personal relationships between staff and students. The guidance provided that any member of staff in a personal relationship with a student should inform the University in order that it could make arrangements to ensure that the assessment of the student in question would be unbiased. Dr Dronsfield failed to comply with this guidance and did not disclose a sexual relationship with a student. As a result, the head of Dr Dronsfield’s department, Professor Green, was appointed, along with an HR colleague, to jointly carry out an investigation to ascertain whether any such conduct had been established.

Professor Green and his HR colleague drafted an investigation report and submitted it to the University’s in-house lawyer for review. Following that lawyer’s advice, Professor Green omitted certain parts of the report that would have been favourable to Dr Dronsfield’s case. These included Professor Green’s opinions that there was no evidence that Dr Dronsfield’s conduct had been immoral, scandalous or disgraceful, or that it was an abuse of power or breach of duty.

The investigation recommended that disciplinary action should be taken. Dr Dronsfield was dismissed without notice.

Dr Dronsfield brought a Tribunal claim of unfair dismissal, principally on the grounds that the amendment of the investigation report rendered his dismissal procedurally unfair.

The fresh Tribunal (on remittal of the case by the EAT), decided that Dr Dronsfield had not been unfairly dismissed. The Tribunal found that the amendments removing Professor Greens opinions were made after receiving legal advice that such opinions should be removed because they were issues that should be left to a disciplinary hearing to decide. The Tribunal concluded that this was not an unfair approach.

Dr Dronsfield appealed to the EAT.

The EAT noted that drafts of a report would not normally be provided to the decision-maker responsible for the next stage of the disciplinary process. The EAT upheld the Tribunal decision that it was not unreasonable or unfair for the investigator to act on advice that evaluative conclusions should not be included in the final report.

Implications: This is a useful reminder of the extent of the investigator’s and HR’s role in disciplinary investigations.

When conducting investigations into employee misconduct, the task of making evaluative judgments on the seriousness of seriousness of an employee’s conduct should usually be left to the disciplinary officer or panel.  The investigator should simply focus on the facts, report the evidence in an unbiased way and limit themselves to deciding whether or not there is a case to answer.  The investigator should not be providing views on the seriousness (or not) of the conduct and guilt.

HR’s own advice should be restricted to matters of law and procedure, rather than questions of answerability, which should be reserved for the investigating officer.

Investigators should be trained to ensure that they act within the scope of their role and need to understand what is being required of them. Disciplinary allegations should be narrowly drafted and the procedure to be followed when investigating matters needs to be clear.

Overall, HR should ensure that any advice does not overstep the mark. Also, employers should consider making any necessary amendments to drafts using legal advisors so that the amendments are legally privileged. However, even when this is done, it is important that the investigating officer can explain any amendments that have been made following a review, and stand by them. There are reported cases (see here) where, unlike the case reported above, investigators or decision makers have felt undue pressure to change their findings and this has led to an unfair dismissal.

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