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Misconduct dismissal and the problem of an investigator’s edits

In a further warning for employers and HR professionals, the Employment Appeal Tribunal has reiterated the importance of disciplinary investigation…

In a further warning for employers and HR professionals, the Employment Appeal Tribunal has reiterated the importance of disciplinary investigation reports genuinely recording what the investigator thinks. The Judgment in Dr Dronsfield v University of Reading also highlight the importance of employers applying their own written standards when reaching decisions to dismiss.

The facts

Dr D was an academic who had a sexual encounter with a student. This in itself was not prohibited by University guidance, but he did breach the guidance when he subsequently did not report this to his head of department (or dean) and supervised the student’s dissertation. Following a complaint from the student’s ex-boyfriend, a Professor was appointed to carry out an investigation, with the support of an HR partner. His initial drafts of the investigation report included a number of passages supportive of Dr D, but these were removed or watered-down following discussions with the HR partner and the University’s in-house solicitor. Most importantly, a passage which concluded that there was no evidence to suggest that Dr D’s conduct was of an immoral, scandalous or disgraceful nature was later deleted in its entirety. This was important because Dr D’s employment was under a statute which said that good cause for dismissal required (amongst other things) “conduct of an immoral scandalous or disgraceful nature incompatible with the duties of the office or employment”.

A disciplinary panel at the University subsequently dismissed Dr D and he was unsuccessful in both an internal appeal and in an Employment Tribunal unfair dismissal claim. However the Employment Appeal Tribunal has now overturned the Tribunal’s findings (and sent the case back for reconsideration by a different Employment Tribunal) based upon two grounds.

  • They have criticised the Tribunal and the University for, in their view, treating the Statute’s wording as being no more than a historic way of saying gross misconduct. The EAT have held that was wrong and the University was required to apply these exact words when reaching their decision, not just some general test of gross misconduct. Where a contract defines the circumstances in which dismissal for misconduct is permitted (which is relatively unusual but may be familiar to many in the HE sector), in determining for an unfair dismissal claim whether the employer acted reasonably in dismissing, the starting point must be the employer’s own test. It’s not a simple question of gross misconduct. 

  • The EAT was concerned that there was no evidence that the revised report came about because the investigator had changed his opinion (which would have been fine). Instead it appeared that parts of his opinion simply seemed to have been excised from the final report. As these were significant opinions on key elements that raised the question as to whether a dismissal based upon it was fair. The Tribunal should have explored in evidence why the investigator’s full opinion was omitted and then determined whether that rendered the dismissal unfair.

What does this mean for me?

We have been emphasising to HR professionals (and others) the importance of not amending or re-writing an investigator’s report following the Judgment in Ramphal v Department of Transport last year (even if you think it is wrong or could be better-worded). That Judgment said a dismissal could be unfair if you made amendments and were not the investigator. This new Judgment goes a step further and means that anyone writing an investigation report must be very careful about the evolution of the report and, if initial views are changed or omitted, must be prepared to explain why. A dismissal may be rendered unfair if an investigator’s real views are removed from a final version of the report, even if a full and fair process is subsequently followed.

The Judge in the Dronsfield case did refer to Ramphal and noted that unlike in that case the investigation report in this one was the joint responsibility of the Professor and the HR person. Perhaps surprisingly he viewed this as not normal practice. If you are to be jointly appointed as an investigator and a report is a joint view, make sure that this is not only clear in the report but also in the terms of reference or e-mail/letter assigning the task and informing the individual. Be careful about how views evolve and how initial considerations are recorded, particularly if you have a co-investigator who is initially reticent to agree with your point of view.

If you are a University with a Statute like Reading’s, do ensure that the Statute’s words are applied when dismissal of an academic is considered. However for any employer who has a statement limiting when dismissal may occur, it is really important to go back to the words of your own statute/policy and ensure that it is being applied and you (or the decision maker) explain why the misconduct being considered fits within your own definition.

Comment

It is important to ensure that any disciplinary investigation lays the basis for a fair dismissal, if that is what the dismissing officer/panel decides. This Judgment highlights the problem of draft reports – those reports are usually disclosable in proceedings. Do take advice from us if in doubt, and indeed do utilise our services to receive advice and assistance in discussing an initial draft report with an investigator, as drafts sent to us for the purposes of taking advice have the advantage of being privileged.

If this case raises any issues for your organisation, please speak to your usual contact in the Weightmans employment pensions and immigration team (or Phil Allen on phil.allen@weightmans.com).