Where to draw the line in disciplinary investigations?
Generally speaking, if a lawyer’s input (or that of Human Resources) in an investigatory process is so extensive that any subsequent investigatory report is no longer the product of the investigating officer, there is a risk that any subsequent dismissal may be unfair.
However, in the recent case of Dronsfield v The University of Reading, the EAT found that changes to an investigatory report made at the suggestion of an in-house lawyer did not make the employer’s subsequent decision to dismiss the employee unfairly.
Dr Dronsfield, a professor at Reading University, was dismissed following behaviour that was “immoral, scandalous or disgraceful [and] incompatible with the duties of the office or employment”.
Dr Dronsfield engaged in a sexual relationship with a student and failed to inform the University, in line with its policies and procedures, so that it could ensure that any assessment of the student in question would not be biased.
He continued to supervise the student in question during her dissertation.
Although no allegations of bias were brought against Mr Dronsfield, a department head and an HR representative were jointly appointed to investigate the allegations that he had:
- a sexual relationship with a student without reporting it, creating a potential conflict of interest
- abused his position of power
- acted in breach of his duty of care towards students
- late-night meetings with female students involving alcohol.
A draft investigation report was prepared, but before the formal recommendations were made, the draft report was reviewed by the University’s in-house lawyer. The report included some “evaluative conclusions” on the part of the investigators addressing whether, in their view, Dr Dronsfield’s conduct amounted to actionable wrongdoing.
On the advice of the in-house lawyer, the final version of the report omitted these conclusions (which were potentially favourable to Dr Dronsfield), including their opinions there, was “no evidence that the conduct of Dronsfield constituted conduct of an immoral, scandalous or disgraceful nature”.
He was subsequently dismissed without notice.
Internal appeal failed
Dr Dronsfield obtained copies of the previous draft investigation reports under a freedom of information request and brought an internal appeal. The appeal was dismissed, and he issued an unfair dismissal claim.
The Employment Tribunal ruled in favour of the University in finding that the dismissal fell within the band of reasonable responses and, as such, Dr Dronsfield’s claim failed. Dr Dronsfield appealed this decision.
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Appeal following a tribunal ruling
On appeal, Dr Dronsfield argued that the tribunal had erred when making its decision by failing to address the fact that large areas of the report had been omitted.
The Employment Appeals Tribunal (EAT) sent the case back for fresh hearing before a different tribunal, specifically to consider the relevance of the changes to the investigation report and the investigators’ reasons for amending the report.
Further tribunal and appeal
The tribunal again ruled the dismissal was fair, and Dr Dronsfield subsequently lost again before the EAT.
The tribunal and EAT ruled that it was reasonable for the investigators to act on the lawyer’s recommendations and delete the “evaluative” conclusions. Removal of the conclusions did not render the dismissal unfair. An investigation report should be limited to an investigation of the facts and to recommend whether there is a prima facie case to answer before a disciplinary panel. This was in line with ACAS guidance; it was for the disciplinary panel to evaluate the evidence and decide on guilt.
Impact on schools
This decision serves as a useful reminder to schools as to the role of an investigating officer in a disciplinary process – i.e. their role is to determine, on the basis of the facts, whether there is a case to answer at a disciplinary hearing and not to reach any further conclusions.
It also highlights that the role of Human Resources in a disciplinary process should, essentially, be to provide support and advice to the investigating officer on matters of law, process and procedure. It should always be for the investigating officer to reach a conclusion on the appropriate action to take in any given case, and care should be taken to ensure that any investigatory report demonstrates the independence of the investigating officer’s decision.
When drafting investigatory reports, schools should also be mindful that that previous drafts may be disclosable in the event of a tribunal claim, unless they are subject to legal professional privilege.