The importance of investigations and appeals

Employers often find themselves in a difficult position when it comes to a disciplinary investigation. For example, does the employee know the allegations against them? Has the investigation officer carried out as detailed an investigation as possible? Has the employee seen all the evidence? Is there conflicting evidence?

These issues were raised in a recent case involving a nurse from Singapore who was employed by a hospital for over four years until her summary dismissal for misconduct. In line with the hospital’s procedures, she was reported to the police (but later acquitted) for alleged mistreatment of a patient. She also lost her work permit and right to remain in the UK.

An employment tribunal held she had been unfairly dismissed on the basis that the investigation was procedurally unfair. It held that she had not been given proper details of the case against her, certain documents had gone astray and that the investigation had been inadequate because the hospital had only interviewed colleagues and not anyone else involved.

The Employment Appeal Tribunal disagreed and concluded that the procedural errors did not change the overall fairness of the dismissal. However, the Court of Appeal has re-instated the tribunal’s original decision of unfairness and given guidance to employers on investigations:-

Reasonable Investigation - Case law has established that one of the factors to be taken into account in misconduct dismissals is whether the employer carried out as much investigation into the matter as was reasonable in "all the circumstances of the case". The more serious the consequences of dismissal for the employee, the more careful the investigation has to be.
“All the circumstances of the case” – included in this case the employee’s length of service, damage to her career and immigration status.
Conflicting evidence - Whilst an employer must form a genuine belief on reasonable grounds that misconduct has occurred, it is not obliged to believe one employee and disbelieve another where there is conflicting evidence but it should give reasons for preferring one’s evidence over another’s.

It is vital at the start of any investigation process to be clear on what and how serious the allegations are and decide an appropriate investigation process. Employers should always follow their own internal procedures and review ACAS guidance. Having separate personnel undertake the investigation, disciplinary and appeal parts of the process will assist in ensuring that fair procedure is followed and no decisions have been made until the end of the disciplinary meeting. Finally, an appeal which re-hears the allegations in full can also ‘right the wrongs’ which may have occurred in an earlier part of the process.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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