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Can altering a draft investigation report lead to an unfair dismissal?

Senior Associate Solicitor, Alexandra Besnard

The Employment Appeal Tribunal in the case of Dronsfield v The University of Reading has considered whether altering a draft investigation report following legal advice could result in an employee being unfairly dismissed.

Background

The Claimant was an academic working for the University of Reading (“the Respondent”). The Respondent began disciplinary proceedings against the Claimant after receiving a complaint that the Claimant had been having a sexual relationship with a student. The Respondent’s rules stated that the Claimant could only be dismissed if his conduct was “immoral, scandalous or disgraceful”. The disciplinary process involved an investigation and the investigators were required to consider whether this conduct was established.  An investigation report was produced which included a favourable conclusion that there was no evidence to substantiate the conduct.

However, following legal advice from the in-house solicitor, the conclusion was removed on the basis that the investigation report should focus on the facts of the case and it should be up to the disciplinary panel to make evaluative conclusions.

The panel at the disciplinary hearing subsequently found that the Claimant’s actions did amount to conduct which was “immoral, scandalous or disgraceful nature incompatible with the duties of office or employment” and the Claimant was dismissed. The Claimant then brought a claim to the Employment Tribunal for unfair dismissal on the basis that the disciplinary investigation was unfair.

The Law

When considering whether an employer has dismissed an employee fairly or unfairly, a Tribunal must decide whether the employer has followed a fair procedure. In order to decide this, a Tribunal will consider whether the employer has followed their own policies and procedures and also if they have acted in accordance with the ACAS Code of Practice on Disciplinary and Grievance Procedures.

Decision

The Employment Tribunal dismissed the claim so the Claimant appealed to the Employment Appeal Tribunal (“EAT”).

The EAT also dismissed the claim. It concluded that the investigators were entitled to change their report following legal advice. The evidence had not been withheld and there was no pressure put on the investigators to change the report.

Comment

The decision reiterates the role of the investigator in disciplinary proceedings which is to establish the relevant facts and consider whether there is a prima facie case to answer. It is then up to the disciplinary chair or panel to reach an evaluative conclusion.  Had the investigators’ report been altered so that it did not reflect their findings or withheld relevant information, this may have changed the outcome and made the process and dismissal unfair.

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