The recent case of Dronsfield v. University of Reading UKEAT/0200/15 has prompted some fairly sensationalist headlines. Take the Evening Standard, for example: "University of Reading art lecturer who had sex with 'vulnerable' student sacked". But what lessons can employers take away from the case?

The set of facts is fairly specific to institutions, such as universities, which have their own statutes and by-laws. However, the case does also have more general application and serves as a useful reminder to employers about how disciplinary processes should be properly carried out and documented.

The facts

Dr Dronsfield was an associate professor at the University of Reading, where he enjoyed security of tenure. The university's activities are governed by statutes, including one which expressly deals with dismissal of academic staff. In order to dismiss, the university must have "good cause" for dismissal, in the form of one of the reasons specified in "statute XXXIII". The reason specified as pertinent to this case was "conduct of an immoral, scandalous or disgraceful nature incompatible with the duties of the office or employment".

Dr Dronsfield's contract confirmed that his appointment was subject to the charter and statutes and that his appointment would not be terminated by the university other than under statute XXXIII.

An allegation was raised against Dr Dronsfield that he had failed to report a sexual relationship with a student who he was also responsible for supervising. A Professor Green was appointed to investigate the allegation, with support from Ms Rolstone, an HR partner.

Professor Green and Ms Rolstone produced a joint investigation report. Initial drafts were subject to review by the university's HR department and in-house lawyer. The final version of the report omitted a number of the initial findings that would have been favourable to Dr Dronsfield, including, in particular, a summary of findings that "in essence, there is no evidence to suggest that the conduct of Dr Dronsfield constituted 'conduct of an immoral, scandalous or disgraceful nature'".

Notwithstanding that finding, the report concluded that there was evidence that Dr Dronsfield had breached his duty of care towards students. In light of the investigation, a disciplinary panel was appointed, which, following a hearing, recommended dismissal. Dr Dronsfield's internal appeal was unsuccessful and he brought a claim for unfair dismissal.

Tribunal decision

The tribunal at first instance dismissed Mr Dronsfield's claim for the following reasons:

  • In the tribunal's view, the words "immoral, scandalous or disgraceful" were qualified by the words that followed ("incompatible with the duties of the office or employment") and were, in effect, the language thought in 1926 appropriate to describe what in modern language we refer to as "gross misconduct".
  • The tribunal indicated that it was troubled by the redactions to the investigation report following the involvement of HR and the in-house lawyer. However, it accepted the integrity of Professor Green's oral evidence that he signed off the report in good faith because it accurately represented his conclusions.

The appeal to the EAT

Dr Dronsfield appealed to the EAT, arguing that the tribunal had erred in equating the relevant wording with gross misconduct, and that it had failed to ask whether the conclusions of the investigation were fully expressed in the report and whether it was reasonable to dismiss having regard to what was omitted in the final version of the report. The EAT upheld the appeal and remitted the case to be heard by a fresh tribunal.

Section 98(4) of the Employment Rights Act 1996 (ERA 1996) requires a tribunal to review every aspect of the decision to dismiss, including the investigation, disciplinary process, the findings and the sanction imposed, against the standard of the reasonable employer. The university's duty had been to apply the wording in its statute. Alleged misconduct was to be judged against contemporary standards of what is immoral, scandalous or disgraceful. The EAT noted that whether this wording might, in any particular case, provide more protection to a member of academic staff from the modern concept of gross misconduct was irrelevant.

From the press reporting you may well think that Dr Dronsfield's behaviour was immoral, scandalous or disgraceful. However that will be a matter for the fresh tribunal to decide, bearing in mind that, in the initial draft investigation report, Professor Green concluded that Dr Dronsfield's behaviour was not so.

In respect of the investigation report, the EAT found that there was no reason to doubt the tribunal's finding that the final version of the report represented Professor Green's genuine conclusions after receiving honest and unbiased advice. However, the tribunal appeared to have treated these findings as conclusive. The EAT clarified that the test is not subjective integrity but objective fairness.

In particular, there was nothing to suggest that Professor Green had changed his opinion about whether Dr Dronsfield's conduct was immoral, scandalous or disgraceful; rather his opinion had simply been deleted. In order to determine whether it had been reasonable for the university to have decided that Dr Dronsfield's conduct had met the required standard for dismissal, the tribunal should have asked whether Professor Green had changed his opinion or simply omitted it and, if so, why.

EAT's observations on the nature of an investigation and the role of HR

Perhaps the most interesting takeaway point from this decision is the EAT's obiter observations about the conduct of an investigation.

The EAT was surprised that the investigation was produced as the joint responsibility of Professor Green and the HR representative. Best practice would be to have one, independent investigating officer. The EAT agreed with the observation in Ramphal v. Department of Transport [2015] IRLR 985 that HR's advice should be limited essentially to matters of law and procedure, as opposed to questions of culpability, which should be reserved for the investigating officer.

Separately, the EAT also noted that the alleged "victim" was not contacted at any stage of the investigation. The EAT considered that it would be generally good practice for someone in that position to be contacted in the course of an investigation to see whether they wish to contribute to it.

Comment

As set out above, these were a fairly unusual set of facts. However, where an employer does have particular requirements for dismissal set out in any internal rules or regulations it should abide by them. Adherence to those requirements will be relevant to assessing the fairness of the dismissal. Interestingly, although perhaps not surprisingly, according to reports, the university has indicated that it will be updating academics' contracts (governed by the university's internal rules), to bring them into line with non-academic staff (not governed by any internal rules).

Of more general application, employers should ensure that their procedure on the conduct of an investigation is clearly set out and that investigating officers are aware of their role and responsibilities. The decisions in this case and Ramphal both confirm the Supreme Court's judgment in Chhabra v. West London Mental Health NHS Trust [2013] UKSC 80. This effectively established an implied term that the report of an investigating officer for a disciplinary enquiry must be the product of his/her own investigations. Any subsequent review and alternation by a third party must be undertaken with this in mind and the investigating officer will need to be personally able to justify any changes made following a review.

Arguably what this case also highlights is the importance of privilege in investigatory and disciplinary procedures. It is not unusual for HR and legal advisers to have some input in finalising investigatory reports and disciplinary decisions. However, particularly in very sensitive matters which could result in dismissal, employers should take steps to ensure that the drafting process is protected by privilege. This is likely to involve ensuring that, insofar as possible, legal advisers are copied in on all correspondence relating to the disciplinary process and ensuring that all draft documents are marked "legally privileged and confidential".