The role of the in-house lawyer took centre stage in a recent EAT decision involving the dismissal of an academic. The key issue was whether the removal of some wording in the investigation report on her advice, which had expressed an opinion favourable to the academic, had resulted in his dismissal being unfair.
A team had been appointed to investigate allegations that the claimant had broken the University’s code of conduct as a result of his sexual relationship with one of his students. A previous draft of their report included an opinion that his behaviour did not amount to conduct of “an immoral, scandalous or disgraceful nature” - a charge that needed to be proved before he could be dismissed under the University’s statutes (equivalent to a contractual disciplinary procedure).
The previous draft came to light following a freedom of information request, after the disciplinary hearing but before the final appeal decision. The external barrister who heard the appeal said that she accepted that the report had been changed because it was not thought appropriate to draw conclusions based on the factual findings – that was a matter for the disciplinary panel. Although she did not uphold all the disciplinary hearing’s conclusions, she upheld the decision to dismiss.
This is the second time this dispute has been before the EAT. The first time round – back in 2016 – the case was remitted to the employment tribunal, mainly because it had wrongly equated the somewhat archaic wording in the University statute with the more commonly used (but still not exactly modern) formulation “gross misconduct” (see our earlier blog here for more details).
This time round the appeal focused on whether the second employment tribunal had properly addressed whether the removal of the wording in the earlier draft of the investigation report had so tainted the whole process so as to render the dismissal unfair. The EAT dismissed the appeal, saying that the employment judge had grappled with this issue and come to a properly reasoned conclusion that the dismissal had been fair.
This is an unusual case, but there are broader lessons to be drawn about best practice in terms of disciplinary investigations:
- First, don’t assume that previous drafts of investigation reports will not be disclosed. There have been a number of recent cases where claimants have been able to obtain earlier drafts of an investigation report and to persuade the employment tribunal to admit them in evidence. That makes it all the more important to get them right – or nearly right – first time round.
- Secondly, it is sensible to get legal advice as required during an investigation process. The advice itself will normally be privileged, but it will often be apparent how a report has been changed as a result of that advice, if earlier drafts of the report have to be disclosed.
- Thirdly, the requirements of fairness will normally require (in all but the smallest of organisations) a clear separation between the investigation and the disciplinary process. The focus of the investigator should be to establish the facts, and not to recommend how those facts should be evaluated in terms of the employer’s disciplinary rules, and certainly not to suggest the appropriate disciplinary sanction. Investigators will however be expected to recommend whether, in the light of their factual findings, formal disciplinary proceeding should be started, though the final decision about whether to proceed will not normally rest with them.