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The importance of getting the investigation report right in misconduct cases

Posted on 22nd September 2016
Case law

This case also highlights the importance of the employer observing its own disciplinary procedures when considering if the employee is guilty of misconduct sufficient to justify dismissal.

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the university was under a duty to apply the wording of its own disciplinary procedure and not substitute it with the modern day concept of misconduct

Dronsfield v University of Reading [EAT] 2016

In a case involving gross misconduct allegations invariably the employer will appoint an investigating officer who will present his or her conclusions in a written investigation report. The report may exonerate the employee under investigation or may recommend that the allegations are well founded and should be considered by a disciplinary hearing. The fairness of an investigatory report can therefore be an important part of a claim of unfair dismissal. In this case, concerning Dr Dronsfield who was a university professor, problems with the investigation report led to the Employment Appeal Tribunal (‘EAT’) sending back the claim of unfair dismissal to a new constituted employment tribunal.

Key background facts | Sex with a student

Dr Dronsfield had a consensual sexual relationship with a student for whom he had academic supervision of. In breach of the non contractual university guidance Dr Dronsfield did not report this relationship to his manager.

After a complaint was made, the university conducted an investigation which was carried out by another professor who was appointed as the investigating officer with an HR Partner. Unusually the investigation report was written in the plural by both the investigating officer and the HR Partner.

The first draft of the investigation report contained passages which were favourable to Dr Dronsfield. In essence the investigating officer stated that, in his opinion, Dr Dronsfield was not guilty of conduct which ought to justify his dismissal, although he had been guilty of a lapse of judgement in relation to the sexual intercourse. The final version of the report, however, had these favourable conclusions removed and this led to Dr Dronsfield having to face a formal disciplinary hearing charged with the allegation that he was guilty of "conduct of an immoral scandalous or disgraceful nature incompatible with the duties of the office or employment". The outcome of the disciplinary hearing was that Dr Dronsfield was summarily dismissed without notice or pay in lieu of notice. Under the terms of his appointment he was entitled to six months' notice.

Claim of unfair dismissal

At the employment tribunal Dr Dronsfield brought a claim of unfair dismissal on the basis that, when considering the fairness of his dismissal, the tribunal should have judged his conduct under the university’s disciplinary procedure that only allowed his dismissal in circumstances where his conduct was of an immoral scandalous or disgraceful nature incompatible with the duties of the office or employment. The university, at the employment tribunal, successfully argued that this archaic wording should be equated to the modern general concept of gross misconduct and this meant Dr Dronsfield did not enjoy greater protection under the university’s disciplinary procedures. On this analysis the employment tribunal was satisfied that Dr Dronsfield had been guilty of gross misconduct and therefore his dismissal was fair.

Appeal to the Employment Appeal Tribunal

At the EAT Dr Dronsfield argued that the employment tribunal had incorrectly held his dismissal was fair because it did not take into account important aspects of his case. First, the employment tribunal failed to consider why the investigating officer allowed his investigation report to be amended so that the favourable passages about the claimant were removed. The deletions were made by the HR adviser and by an in-house lawyer. The employment tribunal had failed to ask whether the conclusions of the investigation were fully expressed in report; if not why not; and whether it was reasonable to dismiss having regard to what was omitted in the final version of the report. Dr Dronsfield argued that there had been no proper basis for withholding the deleted passages from the final version of the report and this unfairly misinformed the subsequent disciplinary hearing about the investigating officer’s conclusions.

The EAT agreed with Dr Dronsfield. It stressed the test was not subjective integrity but objective fairness. There had been significant changes to the investigation report but no explanation about why they had been made. Not getting to the bottom of this issue was an important omission by the employment tribunal.

The employment tribunal should have asked if the investigating officer had changed his opinion or was it simply omitted and, if so, why. The employment tribunal should have considered this question when deciding whether it had been reasonable, having regard to the omissions from the final version of the report, for the university to decide that Dr Dronsfield’s conduct had met the required standard for dismissal.

The EAT was also unhappy about how the report had been written in the plural, pointing out that it was unusual. The EAT emphasised that normally an investigation report should be written by the investigating officer and it should be his or her own work and not influenced or contributed to by the employer's HR advisers. The EAT agreed with the observation in Ramphal v Department of Transport [2015] that HR’s advice should be limited essentially to matters of law and procedure, as opposed to questions of culpability, which are reserved for the investigating officer.

Also of note was the EAT’s observation that it appeared that the student, who had the relationship with Dr Dronsfield, had not been contacted at any stage of the investigation. Although Dr Dronsfield's word had been accepted in full by the investigating officer and hence Dr Dronsfield did not complain about this, the EAT considered that it would generally be good practice for someone in the student’s position to be contacted in the course of an investigation to see whether they wish to contribute to it. This is an example of the EAT illustrating the importance of the investigating officer looking for evidence that is both for and against the accused employee.

Using the correct test for misconduct

The second aspect of the appeal concerned the interpretation of the university’s disciplinary procedure that permitted Dr Dronsfield’s dismissal only if he was guilty of conduct of an immoral scandalous or disgraceful nature incompatible with the duties of the office or employment. The EAT upheld Mr Dronsfield's appeal on this point too, stressing that the employment tribunal was wrong to equate the university’s wording to that of the modern gross misconduct definition. Here Dr Dronsfield had the benefit of what was in effect a contractual disciplinary procedure which provided for a limited ground of dismissal and the employment tribunal had erred in law.

Section 98 (4) of the Employment Rights Act 1996 required the employment tribunal to review every aspect of the decision to dismiss, including the investigation, the disciplinary process, the findings and the sanction imposed, against the standard of the reasonable employer. The starting point should have been the university’s stated test for dismissal under its own disciplinary procedure. Having regard to that test, which was whether Dr Dronsfield’s conduct had been of a immoral, scandalous or disgraceful nature incompatible with his duties, had the university acted reasonably in dismissing him? In other words the university was under a duty to apply the wording of its own disciplinary procedure and not substitute it with the modern day concept of misconduct. That said when considering the wording of its own disciplinary procedure the allegation of misconduct had to be judged against contemporary standards of what is immoral, scandalous or disgraceful. Additionally, the words were not to be given a narrow meaning so, for example, immoral was not restricted to sexual immorality, but encompassed generally accepted moral and ethical standards to be expected of a member of academic staff at the time in issue.

Therefore, given the university had incorrectly applied the wrong test for misconduct, Dr Dronsfield was entitled to have his case reheard by a new employment tribunal.

In Practice

This is yet another decision which emphasises the importance of getting the disciplinary investigation correct and making sure the right questions are asked by the disciplinary panel when reaching a decision. At Quantrills a large part of our work involves helping employers investigate serious allegations of gross misconduct, including fraud. The team at Quantrills is always happy to provide advice and guidance on such matters. Please remember also that our advice is always legally privileged.

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