24 Oct 2019
The Employment Appeal Tribunal (EAT) has ruled that an employee wasn’t unfairly dismissed despite content being removed from an investigation report into his conduct expressing views in his favour.
If you want a quick summary of the case and the main takeaway points, you can skip ahead to our Too Long; Didn't Read section here.
Dronsfield v University of Reading
If an employee commits an act of alleged misconduct, you may consider starting a disciplinary procedure. The result of this procedure could be a sanction, such as a warning, or even a dismissal.
However, before this disciplinary procedure is started, employers must make sure a full and fair investigation is carried out.
This investigation should establish the facts concerned and help employers decide if a disciplinary procedure is therefore necessary.
Acas recommends that any report produced from this investigation shouldn’t, from the facts gathered, provide an opinion on what the outcome decision should be.
The report should simply establish the facts and identify if there’s scope to proceed to a disciplinary procedure.
Background to the case
The claimant in this case worked as an associate professor for the University of Reading.
His appointment at the University was subject to a governing statute, stating that he would only be dismissed for ‘immoral, scandalous or disgraceful (ISD) nature incompatible with the duties of the office or employment.’
Additional guidance provided to all University staff outlined that if a member of staff entered into a relationship with a student, they mustn’t be ‘professionally involved with assessing or examining that student.’ They would also be obligated to inform their head of department.
Allegations were later made against the claimant, stating that he’d had a sexual relationship with a student without reporting it. Therefore, he’d abused his position of power and breached his duty of care.
An investigation was conducted and a report was later produced by an investigating manager, Professor Green, in conjunction with an HR representative.
The initial version of the report found ‘no evidence to suggest’ that the claimant’s conduct amounted to ISD contrary to the provisions of the statute.
However, the final version removed this conclusion following advice from external solicitors. They stated that an investigation report shouldn’t set out its own evaluative conclusions.
The claimant was later dismissed for gross misconduct and appealed against this decision.
Although the external barrister who heard his appeal read the initial report in its entirety and considered the omissions, he upheld the decision to dismiss.
What happened at the original tribunal?
The claimant’s original claim of unfair dismissal was dismissed by the employment tribunal (ET).
Although they were concerned with the redactions to the investigation report, they ultimately accepted the integrity of Professor Green’s findings.
He’d signed off the final report genuinely believing it to be accurate.
What happened at the original Employment Appeal Tribunal?
On appeal, the Employment Appeal Tribunal (EAT) overturned this decision and remitted the case back to a fresh tribunal.
They found that the report had been heavily influenced and amended by the university’s HR and in-house legal departments—meaning that the standards of objective fairness had been compromised.
Additionally, the ET had failed to consider why Professor Green had seemingly changed his view to the claimant’s detriment.
What did the new tribunal say?
The new tribunal once again found that it had been a fair decision to dismiss the claimant.
They held that Professor Green had changed his view on advice from solicitors. On the balance of the facts, the university had been correct to leave overall conclusions as to whether the claimant’s conduct did amount to ISD to the disciplinary tribunal.
The claimant appealed on the grounds that the tribunal had not adequately addressed the arguments he put forward as to his dismissal not being fair, nor provided adequate reasons as to why they’d been rejected.
What did the new Employment Appeal Tribunal say?
The EAT dismissed his appeal, finding that the tribunal had correctly assessed the claimant’s claims.
They held that there was no suggestion that any evidence had been withheld from the investigation report, nor that any of this evidence had not been put before the disciplinary panel that had made the decision to dismiss the claimant.
Furthermore, the external barrister had been made aware of, and considered, all omissions to the report at the appeal stage. He had been entitled to find that no pressure had been placed upon Professor Green to change the report.
Although the facts of this case are specific to the statutes and by-laws of Reading University, it does demonstrate to organisations the appropriate process for carrying out disciplinary investigations.
If an investigation report is altered in any way following input from HR or legal, organisations will need to be able to demonstrate clear justification for the changes, which they were able to do here.
Tribunals will always look to ascertain if these changes were necessary and why they were made. It is therefore advisable that investigators are told what, exactly, they should investigate and not provide any evaluative opinions that should be determined within a disciplinary.
A professor at Reading University allegedly entered into a relationship with a student. Due to statutes and guidance in place, the professor was dismissed for gross misconduct following an investigation. He appealed against this decision.
The case went to an employment tribunal, then it was appealed, then it was referred back to a fresh employment tribunal where it was upheld, then appealed, and finally upheld again.
The main sticking point was around the fact that the final investigation report was changed following advice from external solicitors. The initial report contained viewpoints which shouldn’t have been there, so they were removed. Ultimately, no information was withheld, and Professor Green was able to demonstrate that there was legitimate reasoning behind removing the viewpoints.
If you are looking to make changes to an investigation report, always ensure there is demonstrable reason for doing so, and that it’s justified. Avoid evaluative opinions, as you should provide these in the disciplinary itself.
Worried how this latest ruling might impact your business? Dealing with a difficult HR situation and not sure where to turn? Speak to a Croner expert today for support and guidance on 01455 858 132.
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