Before undertaking a disciplinary procedure into alleged misconduct, organisations must first carry out a thorough investigation into the allegations. Acas recommends that the report produced from any investigation should not, from the facts gathered, provide an opinion on what the outcome decision should be. These reports should simply establish the facts and identify if there is scope to proceed to a disciplinary procedure.
The claimant in this case worked as an associate professor for the University of Reading. His appointment at the University was subject to a governing statute, which stated that he would only be dismissed for ‘immoral, scandalous or disgraceful (ISD) nature incompatible with the duties of the office or employment.’ Additional guidance provided to all University staff outlined that if a member of staff entered into a relationship with a student, they must not be ‘professionally involved with assessing or examining that student’ and inform their head of department.
Allegations were later made against the claimant, stating that he’d had a sexual relationship with a student without reporting it and had, therefore, abused his position of power and breached his duty of care. An investigation report into these allegations was later produced by an investigating manager, Professor Green, in conjunction with a HR representative.
The initial version of the report found ‘no evidence to suggest’ that the claimant’s conduct amounted to ISD contrary to the provisions of the statute. However, the final version removed this conclusion following advice from external solicitors, who stated that an investigation report should not set out its own evaluative conclusions. The claimant was later dismissed for gross misconduct and appealed against this decision. Although the external barrister who heard his appeal read the initial report in its entirety and considered the omissions, he upheld the decision to dismiss.
ORIGINAL ET AND EAT
The claimant’s original claim of unfair dismissal was dismissed by the employment tribunal (ET). Although they were concerned with the redactions to the investigation report, they ultimately accepted the integrity of Professor Green’s findings. He had signed off the final report genuinely believing it to be accurate.
On appeal, the Employment Appeal Tribunal (EAT) overturned this decision and remitted the case back to a fresh tribunal. They found that the report had been heavily influenced and amended by the university’s HR and in-house legal departments. This meant that the standards of objective fairness had been compromised. Additionally, the ET had failed to consider why Professor Green had seemingly changed his view to the claimant’s detriment.
The new tribunal once again found that it had been a fair decision to dismiss the claimant. They held that Professor Green had changed his view on advice from solicitors. On the balance of the facts, the university had been correct to leave overall conclusions as to whether the claimant’s conduct did amount to ISD to the disciplinary tribunal.
The claimant appealed on the grounds that the tribunal had not adequately addressed the arguments he put forward as to his dismissal not being fair, nor provided adequate reasons as to why they had been rejected.
The EAT dismissed his appeal, finding that the tribunal had correctly assessed the claimant’s claims.
They held that there was no suggestion that any evidence had been withheld from the investigation report, nor that any of this evidence had not been put before the disciplinary panel that had made the decision to dismiss the claimant. Furthermore, the external barrister had been made aware of, and considered, all omissions to the report at the appeal stage. He had been entitled to find that no pressure had been placed upon Professor Green to change the report.
Although the facts of this case are specific to the statutes and by-laws of Reading University, it does demonstrate to organisations the appropriate process for carrying out disciplinary investigations. If an investigation report is altered in any way following input from HR or legal, organisations will need to be able to demonstrate clear justification for the changes, which they were able to do here.
Tribunals will always look to ascertain if these changes were necessary and why they were made. It is therefore advisable that investigators are told what, exactly, they should investigate and not provide any evaluative opinions that should be determined within a disciplinary.