Standards of disciplinary investigation before dismissal

A recent decision of the Employment Appeals Tribunal serves as a reminder to employers to ensure that an appropriate investigation is carried out before an employee is dismissed for gross misconduct.

The issue in question may seem obvious, but the case in question demonstrates that the detail and depth of investigation required to ensure that a resulting dismissal is fair will largely depend on the severity and seriousness of the allegations concerned.

Employers can sometimes be tempted to carry out a very limited investigation, with a view that a speedy solution is always the best way forward for everyone. However, where the consequences of the possible dismissal are particularly severe, a thorough and detailed investigation will be required. The recent case of TDG Chemical v Benton highlights the fact that the standard of investigation must also fit the gravity and seriousness of the allegations themselves.

Mr Benton worked as a driver for TDG Chemical. A colleague, a fellow driver, alleged (in a 50 word statement) that Mr Benton mouthed a racist comment at him when he was reversing his vehicle towards Mr Benton’s own car. Mr Benton subsequently denied the allegation, saying that his colleague had been mistaken as to what he had seen, and he denied being a racist. He was interviewed about the incident on a number of occasions.

In the following disciplinary hearing Mr Benton was accompanied by his trade union representative. The request, made by the representative, that the colleague should be made available to question at the hearing, was refused. Mr Benton was sacked for gross misconduct.

The Employment Tribunal ruled that Mr Benton had been unfairly dismissed, on the basis that it found that the dismissal procedure had been unfair because the employer had not carried out an adequate investigation before deciding to dismiss him. The Employment Appeals Tribunal accepted that the nature of the allegation (racial discrimination) against Mr Benton was extremely serious, and so a high standard of investigation was required. The Employment Appeals Tribunal agreed that it was unfair, in the circumstances of this case with very little other evidence, to deny the opportunity to ask questions of the accuser in the disciplinary hearing.

This case shows that employers need to apply particularly thorough standards to disciplinary investigations and procedures when extremely serious allegations are made against an employee. The availability of a witness for questioning in a disciplinary hearing is not always essential to a fair process. This case does suggest that where there is no other evidence available that may be challenged or tested in a disciplinary hearing (such as where the case involves a straight and serious allegation where just two people were present), then it may be more appropriate than not to enable the sole witness to be questioned in the disciplinary hearing. If an employer wishes to avoid this happening, then the lesson from this case is to make sure that a detailed statement is obtained from that person, and that the statement is made available at the hearing (in this case, the accusers statement ran to just 50 words!), and to carefully consider all the surrounding circumstances. Obviously if an allegation is made by a person that it not an employee of the same employer, then there will be clear practical indications that may result in it being inappropriate or impractical to question that person in a subsequent disciplinary hearing. The basic lesson to be learned from this case is to give careful consideration to the extent and detail in any disciplinary investigation, and keep this under review throughout the whole of the disciplinary process, having regard to the seriousness of the nature of the allegations and the seriousness of the consequences of dismissal to the particular employee.      

If you need any further advice and help on the issues raised in this article please do not hesitate to contact us.