An adequate investigation is a key part of a misconduct dismissal for it to be fair.
This is necessary to show:-
- the employer has reasonable grounds to believe that the employee is guilty of the misconduct; and
- the employee knows the case they have to meet.
The recent case of Dronsfield v The University of Reading has highlighted that the investigating officer’s role is not to provide evaluative conclusions but simply to decide whether there is a case to be answered and refer the matter to a disciplinary hearing.
Employers need to make sure that their investigating officers understand what is expected of them.
The Facts of the Dronsfield Case
Dr Dronsfield was an Associate Professor in Fine Art at the University of Reading.
Dr Dronsfield admitted to having a sexual relationship with one of his students which he failed to report to the University at the time. Under the statute governing the University, Dr Dronsfield could only be dismissed for conduct of an “immoral, scandalous or disgraceful nature incompatible with the duties of the office or employment”.
Following an internal disciplinary procedure, Dr Dronsfield was dismissed for gross misconduct.
During the disciplinary process evaluative conclusions on behalf of the investigation officer were removed (following legal advice) from the investigation report before it was finalised which were favourable to Dr Dronsfield.
Dr Dronsfield challenged his dismissal claiming it was unfair on a number of grounds including on the basis that the evaluative conclusions in his favour had been removed from the investigation report.
The EAT dismissed the appeal, finding the dismissal to be fair. The investigating officer had taken legal advice (as he was entitled to do so) and accepted the advice that evaluative conclusions should be the job of the disciplinary officers/panel which is why they had been removed.
Key Points for Misconduct Investigations:-
- What is to be investigated needs to be clear and precise.
- Any investigation report must be the product of the investigation officer.
- The role of HR should be limited to matters of law or procedure only. The role of HR should not stray into areas of culpability. This does not, however, prevent the investigating officer taking advice from a legal adviser.
- If any changes are made to an investigation report following advice taken, the investigating officer needs to be able to explain any changes made.
- Evaluative conclusions/opinions are for the disciplinary panel/hearing.
- The role of an investigating officer’s role is to decide whether there is a case to be answered.
- Any investigation needs to gather evidence from both sides.
ACAS Step by Step guide on investigations
ACAS Code of Practice on Disciplinary and Grievance Procedures