The Employment Appeal Tribunal has suggested that the most accurate word to describe a disciplinary investigation that paves the way for a fair dismissal is “sufficient”. “Reasonable” is the more commonly used adjective, but in this recent decision, repeating the “reasonable investigation” mantra had arguably led the employment tribunal astray.
The best-known guidance about assessing the fairness of misconduct dismissals comes from the EAT’s judgment in British Home Stores v Burchell, decided back in the late 1970s. As we are constantly reminded by the appeal courts, it is however important never to lose sight of the legislation itself, which states that the assessment of the fairness of a dismissal depends on "whether in the circumstances...the employer acted reasonably", having regard to the reason for dismissal it has shown.
Putting that warning to one side, in misconduct cases the three-fold test set out in Burchell is still a very handy aide-memoire. It can be summarised as follows:
- The employer believed the employee to be guilty of misconduct;
- This belief was based on reasonable grounds; and
- At the time it formed the belief, it had carried out as much investigation as was reasonable.
It is worth emphasising that even if the employer satisfies all these requirements, the tribunal will still need to decide whether dismissal was a reasonable sanction for the misconduct the employer believes has been committed.
In this particular case, involving a nurse practitioner employed by NHS 24, the employment tribunal had come to the unusual conclusion that the investigation had been too wide-ranging, and so could not be regarded as reasonable. In its view this meant that the dismissal was unfair, since it had not been reasonable to extend the investigation to previous patient safety incidents which had not resulted in any disciplinary action at the time. However the reasonableness of the dismissing officer in relying on this information when reaching the decision to dismiss was not challenged by the claimant. In the EAT’s view that meant there was no rational basis for challenging the inclusion of this material in the investigating officer’s report
The EAT therefore allowed the employer’s appeal and substituted a finding of fair dismissal. Although there were other factors at play, it seems that the employment judge may have gone off track by forgetting that “sufficient” is probably a more helpful adjective to apply than “reasonable” when assessing whether the disciplinary investigation meets the third limb of the Burchell test.