Under section 98(4) of the Employment Rights Act 1996 (ERA), whether a dismissal is fair or unfair will depend on whether the organisation acted reasonably in treating the employee’s conduct as a sufficient reason for dismissing them. The case of British Home Stores v Burchell provides further clarification, outlining that a decision to dismiss requires ‘as much investigation into the matter as was reasonable in all circumstances of the case’.
The ACAS Code of Practice on Disciplinary and Grievance Procedures dictates that it is ‘important to carry out necessary investigations’ and that this will, in some cases, require the holding of an investigatory meeting with the employee prior to a disciplinary hearing. It also outlines that, in other cases, the ‘investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing’.
The claimant in this case worked night shifts in a hotel, part of which involved patrolling the building. After he was found lying in a bed with the lights off during a night shift, management accused him of sleeping whilst at work. Upon further investigation, they noted that CCTV cameras outside the room where he was found did not pick him up leaving the room to conduct his patrols for over an hour. In response, the claimant asserted he had been lying down for around ten minutes prior to being discovered due to a migraine and had actually conducted his duties.
The claimant was suspended and later invited to an investigation meeting via a letter, which outlined that if there was any substance to the allegation, there would be a disciplinary. However, on attendance at the meeting he was invited to, the claimant was informed that he was actually already at a disciplinary hearing. He was later dismissed.
At the appeal stage, the claimant alleged that he had left the room through a side door to conduct his duties, which he believed explained why the CCTV had not seen him. However, his appeal was not upheld. He later brought a claim to the employment tribunal (ET) for unfair dismissal.
The tribunal upheld his claim, being very critical of the investigation that had taken place prior to the dismissal. They considered if the organisation, as per Burchell, had conducted a ‘proper investigation’ into his conduct and ultimately concluded they had not done. This was because there was no investigation meeting; the claimant had been invited to what he thought was one, but it turned out to actually be the disciplinary hearing.
Calling this a ‘serious procedural failing’, the tribunal asserted that the claimant had been denied a ‘basic employment right’ as a result of this as he had not been provided the opportunity of providing a full explanation before his case proceeded to a disciplinary.
The organisation appealed, arguing the wording of the tribunal, in particular making reference to an investigation hearing as a ‘basic employment right’, suggested a separate investigatory hearing and disciplinary hearing is required in every case. This seemed to be in direct contradiction to the ACAS Code and, as a result, the lack of an investigation meeting in this circumstance did not render the dismissal unfair.
The Employment Appeal Tribunal (EAT) dismissed this appeal. Ultimately, they found that the procedure leading up to the dismissal in this case, in particular the investigation, had been unfair and agreed with the reasoning of the tribunal on this basis.
However, the EAT did note that neither section 98 of the ERA, nor the ACAS Code, required there to be a separate investigation meeting and disciplinary hearing in every case. Provided the organisation has acted reasonably in its investigation, and taken steps to establish the facts, failure to hold an investigation meeting does not, on its own, render a dismissal unfair.
Despite common belief, this case confirms it is not always necessary to hold an investigatory meeting before proceeding to a disciplinary hearing, however this will always be very fact specific. Organisations should make sure their disciplinary procedures are in line with the ACAS Code and follow them whenever faced with an issue of misconduct. If within their procedures, there is a contractual right to hold investigation meetings, this should be done.