Changes to report didn’t make dismissal unfair
Gross misconduct dismissal
In misconduct cases, you must first carry out an adequate investigation into the alleged misconduct to determine whether there are grounds to take disciplinary action. In Dronsfield v The University of Reading 2019 (see Follow up ), Dr Dronsfield (D), a university professor, admitted to having a sexual relationship with one of his students. Under the University’s governance rules, he could only be dismissed for conduct of an “immoral, scandalous or disgraceful nature incompatible with the duties of the office or employment” . The departmental head and an HR officer jointly investigated the allegations against D and they produced a draft investigation report. That draft was reviewed by the University’s in-house solicitor and, on their legal advice, the final version of the report omitted some findings that would have been favourable to D, including an evaluative opinion that there was no evidence his conduct had been of an immoral, scandalous or disgraceful nature. Following a disciplinary hearing, D was dismissed for gross misconduct. His appeal against dismissal was rejected and so he brought an unfair dismissal claim, arguing that amendment of the report rendered his dismissal procedurally unfair. The employment tribunal held that his dismissal had been fair and so he appealed to the Employment Appeal Tribunal (EAT).
Pro advice. At an earlier hearing in this case (it came before the EAT twice), the EAT criticised the involvement of HR in the investigation process, stating that the preparation of a joint report was “not normal practice” , so don’t appoint joint investigators if one is from HR.
EAT decision
The EAT dismissed the appeal. It held that the tribunal had been correct to find it fair and reasonable for the investigators to have relied on the advice of the solicitor and to have amended the investigation report to limit their conclusions to whether there was a prima facie disciplinary case to answer, and to have removed any evaluative opinion of D’s conduct.
Pro advice 1. There was no suggestion here that any evidential material had been omitted from the report or not put before the disciplinary hearing; the issue solely related to the removal of the investigators’ evaluative opinion from the report. As it was for the disciplinary panel, and not the investigators, to make any evaluative judgements about D’s conduct, there was no procedural defect in the disciplinary process. In addition, no pressure had been placed on the investigators to change the report; they did so voluntarily once they accepted the legal advice.
Pro advice 2. This case serves as a reminder of the extent of the conclusions that should be set out in an investigation report. The investigator can recommend whether formal disciplinary action should be pursued based on the evidence gathered, but they should not set out any evaluative opinion on the seriousness of the employee’s alleged misconduct and nor should they recommend a particular disciplinary sanction, e.g. written warning or dismissal. Those are matters for the chair of the disciplinary hearing and it’s not for the investigator to prejudge this or to try to influence the hearing’s outcome.
Pro advice 3. When appointing an investigator, clearly define the factual matters to be investigated and provide them with a report form to complete (see Follow up ).
Pro advice 4. If you’re asked to advise an investigator on their report, confine your advice to ensuring compliance with internal procedures and the law. Don’t be tempted to insert yourself into the role of either fact finder or decision maker.
Dronsfield v The University of Reading 2019
Disciplinary investigation report
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