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Investigations: getting the balance right

We are reminded by a recent decision of the Employment Appeal Tribunal (EAT) that the purpose of an investigation should be limited to an investigation of the facts. It is important not to cross the line and move into decision-making territory. An issue that arises is whether recommendations about disciplinary action being taken can reasonably form part of the investigation. In addition, what information can be excluded?

In Dronsfield v. The University of Reading the claimant was a professor who was dismissed for gross misconduct after he had admitted to having a sexual relationship with one of his students. We wrote about this case as a result of it making the headlines in 2016 (re-read here). The claim has in fact been heard by both the Employment Tribunal (ET) and EAT twice.

According to the University’s governance rules, the professor could only be dismissed for conduct of an “immoral, scandalous or disgraceful nature incompatible with the duties of the office or employment”. The head of 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 the solicitor’s advice, Green omitted certain parts of the report that would have been favourable to Dronsfield’s case. These included Professor Green’s opinions that there was no evidence that 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.  Dronsfield was ultimately dismissed and appealed the dismissal, which was rejected. He then brought a claim for unfair dismissal on the grounds that the amendment of investigation report rendered his dismissal procedurally unfair. However, the ET found that the dismissal had been fair. Although the investigation report had been amended, the ET held that it fairly set out the investigators’ position and the amendments did not mean that it represented a false or incomplete position. The EAT also found that he had been fairly dismissed and, on appeal, the case was remitted to a fresh tribunal.

The fresh tribunal found that the dismissal had been fair as it was fair and reasonable for the investigators to rely on the advice of their solicitors and to omit any “evaluative opinion” in the report. The tribunal found that the report set out the investigators’ position fairly and the amendments did not render it false or incomplete. They found that such opinions should be left to the disciplinary panel and not be contained in the investigation report.

Although the university was ultimately successful in defending the claim against it, this case acts a reminder of the extent of conclusions that should be set out in an investigator’s report and what the investigator’s role is. The investigator should be limited to deciding whether or not there is a case to answer.  The case also referred to now fairly well settled law that HR’s advice in relation to disciplinary matters 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.

To discuss training of investigation managers or a policy review, please get in touch with your usual Dentons contact.

Investigations: getting the balance right

Covert recordings: “For the times they are a-changing”

Almost everyone carries around with them a recording device nowadays, in the form of a smartphone or wearable technology.  Where does this leave HR managers and employers in dealing with employees who ask (or don’t ask as the case may be!) to record meetings?

The Employment Appeal Tribunal (EAT) has recently handed down its judgment in the case of Phoenix House v. Stockman.

Ms Stockman (a finance employee) had secretly recorded a meeting with HR during which she was told that she would be disciplined for having earlier interrupted a meeting about allegations she had made against her line manager. Ultimately Ms Stockman was dismissed as a result of an irretrievable breakdown in relationships.  The secret recording only came to light during her subsequent tribunal claim.

Without going into the details of the other findings of the Employment Tribunal (ET), it was found that Ms Stockman did not make the covert recording to try to entrap the company managers, but only because she felt flustered at the time. The impact of this finding was that she was still found to have been unfairly dismissed, but the ET reduced the compensatory award by 10%.

Phoenix House appealed against the ET’s approach to the covert recording of the meeting.  Its position was that, had it known about the recording, it would have dismissed Ms Stockman for gross misconduct and that she should not be entitled to any compensation on that basis.

Ultimately the EAT agreed with the ET, finding that Ms Stockman had not recorded the meeting with the intention of snaring her employer or obtaining confidential information (she had recorded a single meeting concerned about her own position) and that the tribunal had made a legitimate assessment of these facts and reduced the compensation accordingly.

The EAT made some interesting comments around covert recordings more generally.

The accessibility of a recording device being the first observation: “Times have changed … it is now not uncommon to find that an employee has recorded a meeting without saying so.” The EAT said that the reason for the recording must always be considered – this reason will not always be sinister or to gain a dishonest advantage, but will be relevant and, occasionally, justifiable. Importantly, the EAT rejected the employer’s argument that covertly recording a meeting will necessarily undermine the trust and confidence between employer and employee.

The culpability of the employee must also be considered – the EAT suggested inexperience could lead to an employee recording a discussion completely innocently? What about the content of the recording? If a note of the meeting would be shared in any event, then perhaps there isn’t (or shouldn’t be) a problem. This is contrasted with a meeting during which confidential information or information about others is disclosed.

The EAT’s concluding remarks pointed out that rarely does “covert recording” appear on a list of instances of gross misconduct in a disciplinary procedure and that this might also be pertinent. Indeed, there was no mention in the disciplinary procedure used by Phoenix House of such misconduct (even by the time the case was being heard by the ET, as pointed out by the EAT).

Going forward the EAT suggested, practically speaking, that it would be good employment practice for an employee or employer to say if there is any intention to record a meeting, save in the most pressing of circumstances – and it will generally amount to misconduct not to do so.

Covert recordings: “For the times they are a-changing”

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Is it still viable to run an internal disciplinary process alongside criminal proceedings?

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The suspension of a teacher alleged to have used unreasonable force with pupils was not a repudiatory breach of contract.

In the recent case of Mayor and Burgesses of the London Borough of Lambeth v. Agoreyo [2019] EWCA Civ 322, the Court of Appeal was asked to consider whether the suspension of a primary school teacher pending an investigation into alleged misconduct amounted to a repudiatory breach of the implied term of trust and confidence.
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Disciplinary investigations: Common sense and even-handedness should prevail

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Context is key in claims of harassment

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EAT finds you cannot cherry pick from without prejudice conversations

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Suspension for alleged misconduct may be a breach of contract

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Tribunal awards £2 for employer’s refusal of unsuitable companion at disciplinary hearing

Mr Gnahoua was a bus driver at Abellio London Ltd (Abellio). He was dismissed for gross misconduct at a disciplinary hearing. On appeal, Mr Gnahoua told Abellio that he wished to be accompanied by two brothers, who had formed the PTSC union, of which Mr Gnahoua was also a member. Abellio refused this request stating it had banned the brothers from representing its staff at hearings due to their “threatening behaviour” and “dishonesty”. Therefore, Mr Gnahoua attended the appeal unrepresented and the decision to dismiss him was upheld.

Mr Gnahoua subsequently brought various claims in the tribunal, which included that Abellio had denied him the opportunity to be accompanied at his disciplinary appeal hearing. The employment tribunal accepted that, by refusing to allow the two brothers to attend the appeal, Abellio was in breach of Mr Gnahoua’s statutory right to be accompanied. Notwithstanding this finding, the tribunal accepted that Abellio had “strong grounds” for refusing Mr Gnahoua’s choice of companion. It also appreciated that Mr Gnahoua had not suffered any loss because of the breach because Abellio had conducted the appeal hearing in a fair and thorough manner. Therefore, the tribunal considered that a nominal award of £2 was appropriate in the circumstances.

The full case report can be found here: Mr M Gnahoua v. Abellio London Ltd 

Tribunal awards £2 for employer’s refusal of unsuitable companion at disciplinary hearing