November 29, 2019

Tips for HR and in-house lawyers dealing with investigations into potential misconduct

A recent case confirms that changes to an investigator’s report into alleged misconduct made on the advice of an in-house lawyer did not make the employee’s subsequent dismissal unfair.

In misconduct cases, for a dismissal to be fair, the employer should first carry out an investigation into the employee's conduct to determine whether there are grounds for disciplinary action to be taken. It will usually be helpful for the investigator to prepare an investigation report summarising the steps taken in the investigation, the allegations and the evidence available in respect of them which may be helpful for the disciplinary hearing.

The investigation report should summarise the factual findings of the investigation, but the investigator should limit their conclusions to recommendations on whether the employer should take formal action, such as holding a disciplinary hearing and shouldn't suggest a possible sanction or prejudge the outcome of the disciplinary hearing e.g. by saying that they believe the employee is guilty of misconduct.

What happened in this case?

Mr Dronsfield, an academic, was dismissed following a number of allegations including that he had not disclosed a sexual relationship with a student. His employer had issued detailed guidance on relationships between staff and students which Mr Dronsfield was expected to follow. However, he could only be dismissed for conduct of an "immoral, scandalous or disgraceful nature incompatible with the duties of the office or employment."  

Mr Dronsfield claimed that his dismissal was unfair after the investigators included some findings that were in his favour in an early version of the investigation report, but then removed them from the final version of the report on the advice of an in-house lawyer. This included the investigators' opinion that there was no evidence that the employee's conduct was of an immoral, scandalous or disgraceful nature. The Tribunal accepted that the reason the comments were removed was to ensure that the focus of the investigation report was on the facts of the case and that the job of drawing conclusions from those facts was left to the disciplinary panel.

The EAT confirmed that the fact that the draft investigation report had been amended in this way did not make the subsequent dismissal unfair. No undue pressure had been put on the investigators to change the report nor had any evidence been withheld. It was appropriate for the in-house lawyer to advise that the investigation report should be restricted to factual findings and a conclusion as to whether there was a disciplinary case to answer, and the investigators had simply accepted that advice. It was for the disciplinary panel to decide whether the employee was in fact guilty of misconduct under the employer's rules.

What does this mean for employers?

This decision is a useful reminder of the limits of the investigator’s role.  Their role is to decide whether there is a case to answer, while it is for the disciplinary manager to decide whether to uphold the allegations of misconduct and, if so, what sanction to impose. So employers should ensure that the factual matters that are to be decided by the investigator are defined narrowly, and should not ask for opinions on the questions to be decided by the disciplinary manager.

This case also provides helpful clarification that if a draft investigation report is altered on the recommendation of an internal or external solicitor for an appropriate reason - the dismissal may still be fair if the employer has a fair reason to dismiss and follows a fair process.

However, if the lawyer or HR becomes so involved in the investigation that an investigatory report can no longer be said to be the product of the investigator, then there would be a risk that a subsequent dismissal may be found to be unfair.

For more information or advice, please get in touch with your usual Clyde & Co contact.

Dronsfield v The University of Reading