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Farrer & Co | Investigation overkill: can a disciplinary investigation dig too deep?

Many readers will have been involved, at least to some extent, with disciplinary dismissals. It is a basic premise of a fair disciplinary dismissal that it must have been preceded by a reasonable investigation. But what exactly is a reasonable investigation? I'm afraid the typical lawyer answer is that it's going to depend on the circumstances! However, in summary, an investigating officer will need to consider a broad range of issues including: 1) how many witnesses they need to speak to; 2) what documents (or other evidence) they need to see; 3) how far back they have to go; 4) explore whether there are any mitigating circumstances etc.

Helpfully, this issue was considered in the recent Employment Appeal Tribunal case of NHS24 v Pillar last month. Unusually, Ms Pillar was challenging the fairness of her dismissal on the basis that the investigation report contained too much information, rather than too little. In particular, Ms Pillar argued that it was unreasonable for the investigation officer to make reference to two previous incidents involving conduct of a similar nature to the incident which resulted in her dismissal for gross misconduct. Neither of those incidents resulted in disciplinary action at the time, with Ms Pillar instead being told to attend further training. On that basis, she sought to argue that the incidents were in essence no longer "live", and that they should not have been mentioned in the investigation report.

The general rule on this point is that when an employee receives a disciplinary warning, that can be referred to in subsequent disciplinary proceedings whilst the warning is still "live" and remains on the employee's file. For example, for a period of 12 months following on from the incident in question. However, once that warning is expired, an employer may only take it into account where the circumstances justified the dismissal anyway.

The aptly named Lady Wise rejected Ms Pillar's case outright. She drew a distinction between the case of an expired warning being removed from an employee's file to Ms Pillar's, where she had been given no assurances one way or another about the future relevance of the incidents she had been involved with. The incidents all related to patient safety, and Lady Wise concluded that it would be wrong to withhold them from the decision maker.

So what does this mean in practice?

In deciding whether an investigation was reasonable, tribunals apply "the range of reasonable responses" test. A tribunal is not deciding whether or not it would have dismissed the employee if it had been in the employer's shoes, but whether or not the decision was reasonable in the circumstances. It recognises that every case will be different, and that there are a range of possible reasonable approaches an employer could take.

Ms Pillar's case touches upon a number of issues which might take an investigation outside the range of reasonable responses – and which employers should take care to avoid - including:

  • referring to warnings which are no longer "live" (except where the circumstances justified the dismissal anyway), or to information that the employee has previously been told expressly would not be considered relevant in any future investigation;
  • including material which is clearly not relevant to the facts being investigated and is prejudicial to a particular individual;
  • not probing individuals on obvious inconsistencies or information where there is no evidence to back up their case;
  • not concluding an investigation within a reasonable time period; and
  • only following up on issues raised by one particular individual and not others.

The involvement of HR in disciplinary investigations

Another recent EAT case involving disciplinary investigations, is that of Ramphal v Department of Transport. This case looked at the role HR should play in disciplinary processes. The EAT held that whilst the investigating officer and decision maker are "entitled to seek guidance from Human Resources...such advice should be limited to matters of law and procedure...and to ensure that all necessary matters have been addressed". Judge Serota went on to add that such advice should not extend to the issues of culpability and credibility.

Briefly looking at the facts of this case: having concluded his investigation, the investigating officer recommended a final written warning. However, having sought input from HR, his recommendation changed, deciding that the employee's actions constituted gross misconduct and worthy of summary dismissal. Perhaps not surprisingly, the EAT found that the dismissal was unfair on the basis that the investigating officer had been "inappropriately lobbied" by HR.

Lessons for employers

In my view, the key messages for employers are as follows:

  • ensure managers involved in both the investigating and decision making process are appropriately trained in how to handle these type of issues;
  • bear in mind that draft investigation reports will be discloseable in the event of future litigation or a subject access request (subject to the involvement of lawyers and privilege applying);
  • tribunals emphasise the importance of the independence of an investigating officer;
  • whilst this case certainly does not suggest that HR cannot have any involvement in disciplinary processes – quite the opposite – care does need to be taken as to whether HR's input and guidance relates to procedure or matters of culpability and credibility. The former is integral to the process whereas the latter should be a matter solely for the investigating officer/decision maker to determine.

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