18 February 2020

Is there a need to investigate?

Sleeping on the job

The Employment Appeal Tribunal (EAT), in the recent case of Sunshine Hotel v Goddard, held that there is not a legal requirement to hold a separate investigatory meeting in every disciplinary case. The requirement is to undertake “as much investigation as [is] reasonable” into disciplinary matters. Choosing not to hold a separate investigatory hearing will not necessarily render the dismissal procedurally unfair.

Mr Goddard was an employee at the Sunshine Hotel, where he was accused of sleeping on the job. Sunshine Hotel alleged that this amounted to misconduct and Mr Goddard was suspended. Whilst on suspension, he was sent a letter by Sunshine Hotel inviting him to an investigatory meeting. The letter stated that if it was found there was substance to the allegation that he was asleep whilst at work, a disciplinary hearing would be held.

When Mr Goddard attended the meeting, it turned out to be the actual disciplinary hearing, and he was ultimately dismissed.

The Employment Tribunal

Mr Goddard brought claims of unfair dismissal and wrongful dismissal against the Sunshine Hotel.

 

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The tribunal, at first instance, found that the dismissal was unfair because the Sunshine Hotel had not followed a fair process. Specifically, the tribunal concluded that the investigation undertaken by the Sunshine Hotel was insufficient, i.e. it had simply sat down with Mr Goddard and watched the CCTV.

Appeal to the EAT

The Sunshine Hotel appealed the decision to the EAT, arguing that the tribunal was wrong to say that a failure to have a separate investigatory meeting was enough to render a dismissal unfair. In its judgment, the tribunal held:

“The claimant was never given the opportunity of providing a full explanation before any disciplinary hearing. That is a basic employment right.”

The Sunshine Hotel understood this to mean that it had breached Mr Goddard’s basic employment rights by not having both an investigatory hearing and then a disciplinary hearing. It argued that there was no right in law to hold two separate hearings.

The EAT agreed with the Sunshine Hotel; there is no right in law or in the ACAS Code of Practice on Disciplinary and Grievance Procedures (the Code) to have an investigatory meeting in every case. The EAT clarified that an employer is required to carry out such investigation as is necessary to establish the facts of the case and whether there is a case to answer at a disciplinary hearing.

Notwithstanding this, the EAT agreed that Mr Goddard’s dismissal was unfair; there had not been a proper investigation into the alleged misconduct. In addition, the Sunshine Hotel had failed to explain the allegation in detail to Mr Goddard within its letter so as to enable him to prepare to answer the case at a disciplinary hearing.

Impact on schools

Whilst this case clarifies that a separate investigatory meeting is not always necessary, it does serve to emphasise that the investigation into the allegations should be sufficient to enable an employer to determine whether there is a case to answer at a disciplinary hearing. In some cases, this will be established by holding an investigatory meeting, whilst in others, the investigatory stage will simply be the collation of evidence.

Schools should act in accordance with their relevant policies and should seek legal advice at the outset if they are concerned about the level of investigation that is appropriate in the circumstances.

This case also reminds schools of the importance of ensuring that the letter inviting the employee to a disciplinary hearing complies with the ACAS Code (available here) and contains sufficient information about the alleged misconduct and its possible consequences to enable the employee to prepare to answer the case at a disciplinary meeting.

 

If you have more questions, please contact our Education team now.

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About the Author
Emma Glazzard, Solicitor

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