Every few years the wider legal community has to be reminded of the employer friendly test of misconduct that applies in employment law.
Employment lawyers are not criminal lawyers. We do not have to prove that beyond reasonable doubt an act of misconduct was committed. Since the 1970s, our tests have been much more fluid. We have to show that during an investigation there were reasonable grounds, based on reasonable evidence, for a finding of belief in misconduct. Then, we must show that the decision to dismiss fell within the 'range of reasonable responses of the reasonable employer'. It might be a harsh decision, one that the employment judge might not like, but not one that was wholly unreasonable.
In 2003, the case of Sainsburys v Hitt brought these two tests together. The reasonableness of the investigation and the reasonableness of the grounds for the belief in misconduct can only be challenged if no employer could have come to the same conclusion.
Last month, the Court of Appeal reinforced these rules when dealing with an incorrect reference produced by a university lecturer. At the time it appeared that she had lied about the competencies of a colleague. There were clear grounds to suggest that there had been a deliberate attempt to create a false impression to the recipient of the reference, another university. Following an investigation, a disciplinary process began. At the disciplinary hearing, after much deliberation, the employer university decided that no disciplinary sanction should be applied to the lecturer. The employee sued in the High Court, arguing that the university’s 'duty of care' towards her had been breached. The judge agreed with her because, after the end of the lengthy disciplinary process, the allegations of misconduct were questionable. The Court of Appeal overturned the High Court’s judgment. At the time of commencing the investigation, there were reasonable grounds, in other words grounds within the range of reasonable responses, to suggest that she had falsified the reference. There was no breach of duty of care.
Employers must carry out thorough and fair investigations but they are not expected to behave like a police force.