Employment Focus | The devil is in the detail – The importance of a thorough investigation in disciplinary proceedings

In the recent case of Ball v First Essex Buses Limited ET 3201435/2017 an employment tribunal held that a bus driver had been unfairly dismissed for gross misconduct when he failed a routine drugs test. The driver’s employer had failed to take into account the driver’s own drugs test and did not engage with the arguments that he put forward in his defence. As such, the employer’s investigation and approach were held to fall outside the range of reasonable responses.

In light of this case we are focusing on disciplinary investigations, their importance and how much investigation is required by employers, particularly where an individual’s employment is at stake.

When dealing with a conduct issue that could amount to gross misconduct employers should always keep in mind the requirements for a fair dismissal. When an employee has at least two years’ service, for a dismissal to be fair there needs to be:

  1. A fair reason

The reason must firstly fall within one of the five categories of potentially fair reasons for dismissal contained within section 98 Employment Rights Act 1996 (‘ERA 1996’), one of which is ‘conduct’.

  1. A fair procedure

Secondly, employers must satisfy the statutory test contained in s.98(4) ERA 1996. This requires that employers are able to show that, taking into account all the circumstances of the case, they have acted reasonably in treating the reason for dismissal as sufficient to warrant dismissal. This has been interpreted by the courts as encompassing the requirement that an employer adopt a fair procedure before taking a decision to dismiss. In the case of conduct, a fair procedure translates into a fair, transparent and consistent application of a disciplinary procedure.

A decision to dismiss must also fall within a range of reasonable responses.

If an employee is dismissed for misconduct the key test set out in the case of British Home Stores Ltd v Burchell [1978] IRLR 379, the ‘Burchell’ test, is applied. Under this, an employer needs to be able to show that:

  • it believed its employee to be guilty of misconduct;
  • it had reasonable grounds for believing that the employee was guilty of gross misconduct; and
  • at the time it held this belief, it had carried out as much investigation as was reasonable.

An employer’s investigation therefore forms a key part of the Burchell test.

As such, some form of investigation will always be necessary before taking any disciplinary action. The level required will vary considerably depending on the circumstances of the case, and could include investigation meetings, obtaining witness statements or simply the collation of evidence. The legal test is that an employer must hold such an investigation as is “reasonable in all the circumstances” judged against a “band of reasonable responses”. Practically this means that employers will always need to investigate sufficiently to ensure that the substance of any misconduct allegations put to an employee are then clear.

How thorough an investigation needs to be will depend on the strength of the prima facie case against an employee, as well as the type of allegations and the potential impact on an employee. A more thorough and detailed investigation may be required where the allegations are more serious and the potential consequences more severe. It is not necessary for an employer to extensively investigate each line of defence put forward by an employee, but to ensure that the investigation as a whole is reasonable.

The purpose of an investigation is to establish a fair and balanced view of the facts, and as such, to decide exactly what the allegations to be answered are. Employers must remain open to the possibility of finding that there is no case to answer and no need for the matter to progress to a formal disciplinary hearing.

The Acas Code of Practice

There is also the Acas Code of Practice on Disciplinary and Grievance Procedures (‘Acas Code’) to bear in mind. The Acas Code is a statutory code of practice which is intended to provide practical guidance to employers and employees on how to fairly carry out disciplinary procedures for misconduct or poor performance.

Employers are not legally bound to follow this but, in the event that a matter ends up in the employment tribunal, the tribunal can take it into account when considering whether employers have acted reasonably or not. In the event that an employee’s dismissal is held to be unfair and the employer has failed to follow the Acas Code, the tribunal can increase the compensation awarded to the employee by up to 25%.  The Acas Code is supplemented by a non-statutory guide called Discipline and Grievance at Work, The Acas Guide. Both the Acas Code and the Acas Guide are available from ACAS www.acas.org.uk.

The Acas Code states that investigations are key to handling disciplinary issues in the workplace. This is in order that the facts of each case can be established. The Acas Code should therefore certainly be borne in mind if dismissal is a possibility.

In the Ball case the employer appeared to have refused to consider any evidence put forward by their employee. The issue of potential contamination of the drugs test had been raised and the employee in question had provided his own test. In light of this, a reasonable employer would be expected to have re-tested the driver as a minimum. The driver was a long standing employee with a clean disciplinary record and it was therefore outside of the band of reasonable responses not to conduct any further enquiries. The employer approached the situation with a closed mind.

This case serves as a useful reminder that employers should not take a ‘black and white’ approach when it comes to investigation findings, in this case in relation to the results of a drug test. Employers should not forget the importance of the investigatory stage. The requirement for a good investigation to take place prior to any disciplinary action is critical, and employers must remain open minded whilst carrying out an investigation. This will include being willing to consider evidence put forward by their employees.

If you have any questions relating to this article or require any advice please contact Catherine Hope, Associate in the Employment team, on 0191 226 3801 or at catherine.hope@sintons.co.uk.

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