Guidance on preparation of investigation reports
In the case of Dronsfield v University of Reading UKEAT/0200/15, the Employment Appeal Tribunal (EAT) provided guidance on identified tests of misconduct and the preparation of investigation reports when considering claims for unfair dismissal.
The facts of the present case
The claimant was an associate professor at the University of Reading (the respondent). The claimant developed a non-academic relationship with a student and failed to report it to the respondent.
The claimant’s employment was governed by royal charter and the respondent’s statutes, as well as his contract of employment. The respondent was entitled to dismiss its academic staff only for ‘good cause as defined in the statute, which required it to prove conduct of an immoral, scandalous or disgraceful nature incompatible with the duties of the office or employment.’
If there was any non-academic relationship between a member of staff and student, the guidance from the respondent stipulated that the member of staff must inform the head of department or dean of the existence of the relationship.
In this case, the claimant did not inform the respondent of the non-academic relationship. An investigation showed that the claimant had breached his duty of care towards the students and the claimant was subsequently dismissed for gross misconduct. The claimant brought a claim in the Employment Tribunal (ET).
Decision of the Employment Tribunal
The ET held that the claimant had been fairly dismissed on the ground of gross misconduct. When deciding whether the claimant had been fairly dismissed, the ET equated the requirement to prove ‘conduct of an immoral, scandalous or disgraceful nature incompatible with the duties of the office or employment’ with the general concept of gross misconduct.
In coming to its decision, it also relied upon an investigation report that had been amended by the respondent subsequent to discussions with its HR department and in-house lawyer. The amendments included the removal of findings and opinions in favour of the claimant from the report. The ET relied on the final, amended, version of the report without considering the relevance of the redactions that had been made, and found that the report represented genuine conclusions after receiving honest and unbiased advice.
The claimant appealed to the EAT.
Decision of the Employment Appeal Tribunal
The EAT allowed the appeal and held that the ET erred in two significant respects when finding that the claimant had been fairly dismissed for gross misconduct.
The first successful ground of appeal related to the interpretation of the phrase in the respondent’s statutes defining the circumstances in which the claimant could be dismissed for good cause – ‘conduct of an immoral scandalous or disgraceful nature incompatible with the duties of the office or employment.’
The EAT held that the ET was incorrect to equate these words with the general concept of gross misconduct. In applying section 98(4) of the Employment Rights Act (ERA) 1996, the ET ought to have considered whether it was reasonable for the respondent to find that the claimant was guilty of ‘conduct of an immoral scandalous or disgraceful nature incompatible with the duties of the office or employment.’ Its reasoning showed that it did not do so, but rather considered gross misconduct as a general concept instead.
The second ground of appeal related to the final version of the investigation report that the respondent relied upon in dismissing the claimant.
The EAT found that the tribunal appeared to have treated the findings in the final, altered, version of the report as conclusive. The EAT held that the ET should have asked whether the conclusions of the investigation were fully expressed in the final version of the report. There was nothing to suggest that the investigation officer had changed his opinion on the claimant, rather his opinion had simply been deleted from the first draft of the report. The tribunal should have asked whether the investigation officer had changed his opinion or simply omitted them and, if so, why he did so. It should have asked whether it was reasonable to dismiss having regard to what was omitted from the final version of the report.
The appeal was allowed by the EAT and remitted the case to a fresh tribunal.
Although this case concerned a university and its particular disciplinary procedures that are set out in its statutes, the guidance that the EAT provided can still have general application to all employers.
In relation to the undertaking of investigations, an employer’s procedure in relation to an investigation or indeed the preparation of an investigation report needs to be clear. The EAT explained that there is an implied term that the report of an investigation officer for a disciplinary enquiry must be the product of their own investigations. If there are any subsequent changes to an investigation report, as there was in this case, the tribunal needs to consider the changes made and question why the changes have been made.
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