Investigations: how far is far enough?

When conducting an investigation it's important to be balanced and thorough. But with complex allegations, it can be difficult to draw a line under…

When conducting a disciplinary investigation it is important to be both balanced and thorough. So far, so good. But when the allegations against an employee are complex, there are lots of witnesses involved or versions of events differ, it can be difficult to draw a line under enquiries. Must every aspect of the employee’s case be put to every witness? How far is far enough?

The High Court has shed some light on this important question in the case of Robert Hendy v Ministry of Justice.

The facts

The Ministry of Justice (MoJ) has been caught up in a two and a half year legal battle with a senior Court of Appeal lawyer accused of bullying conduct.

Robert Hendy, a Master in the Civil Appeals office, was suspended on full pay in December 2011 when two female colleagues made complaints about his bullying behaviour.

The High Court heard that an investigations officer was appointed under the MoJ disciplinary procedure. He concluded that Robert Hendy had made a number of sexual innuendo remarks which were meant in jest but had an adverse impact on the recipients. Robert Hendy complained that the issues were ‘trumped up’ and the result of a conspiracy between the two complainants.

A finding of gross misconduct was made against Robert Hendy in March 2013 and he was summarily dismissed. However, the appeal manager overturned the decision to dismiss him, on the grounds that his defence had not been tested by putting his version of events to the complainants.

The claim

Robert Hendy was reinstated but remained suspended. A new investigations officer was appointed to proceed with the disciplinary case. Robert Hendy claimed that the new process would be a ‘rubber stamping’ of the earlier decision and sought an injunction to halt proceedings until a fresh investigation by an independent person, agreed by both parties, was put in place.

Robert Hendy’s case was that the MoJ disciplinary procedure was contractual and therefore should be adhered to in every detail. In particular, he argued that his case should have been put to the complainants as suggested by the appeal manager and that this recommendation had actually become a contractual right in his favour.

The decision

Mr Justice Mann rejected the point about the appeal manager’s recommendations becoming contractual but considered that there was an arguable view that they should be followed because of the general duty of fairness.

His views on the question of whether Mr Hendy’s case had been adequately put to the complainants are very interesting. He stated that it was not, in his view, arguable that “each and every part of Mr Hendy’s case including his reasoning on credibility” needed to be “put to each and every relevant witness”. He observed that conducting a disciplinary investigation “is not a mechanical process”. What needs to be put to the complainants or witnesses in a case is “enough to enable a reasonable view to be reached”.

Mr Justice Mann considered that the investigating officer had made great efforts to do this, although several matters were not put to the complainants. What was required was that the investigating officer “should do enough to be able to test the complainants’ credibility”. Lord Justice Mann concluded that the investigating officer’s procedures had been sufficiently fair.

Robert Hendy failed to establish there was unfairness of sufficient seriousness to justify halting the proceedings. Any outcome that might result from an allegedly unfair procedure could be challenged later before an employment tribunal, and damages sought. Granting an injunction to halt the procedure would leave Robert Hendy suspended on full salary for a further considerable time and such a financial loss to the MoJ needed to be weighed in the balance when considering the injunction. Robert Hendy’s application for injunction therefore failed.

Comment

Applications for such injunctions are rare and the Judge made it clear that employees cannot assume the court will always intervene whenever there is a perceived unfairness in a disciplinary procedure. “The court cannot micro-manage employment disputes” added Mr Justice Mann.

What can be taken from this case is that, when sharing evidence during the conduct of a disciplinary investigation, it is not necessary to put each and every piece of evidence to every relevant witness. Mr Justice Mann stated that “the process is not akin to a major trial, at which the whole factual case of one party is (by and large) expected to be put to the other. What needs to be put is enough to enable a reasonable view to be reached”.

These comments will be reassuring to all HR practitioners who work hard to conduct complex disciplinary investigations fairly. The Judgment in this case acknowledges that, despite best efforts, there may sometimes be small gaps in the evidence. These will not necessarily completely undermine a case as long as sufficient intelligent and targeted work as been done for the investigator to reach an informed and reasoned view of a matter.

If are struggling with a tricky disciplinary investigation, or have any questions about this case, please speak to Mandy Higgins, Partner, mandy.higgins@weightmans.com or your usual Weightmans contact.

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