Many employers will at some point have to deal with allegations of misconduct against an employee or a situation involving poor performance. Upon determining if a dismissal is fair, part of the test is that an employer must have carried out a reasonable investigation in all the circumstances by following a fair and transparent process.
The assessment of fairness depends on whether the employer acted reasonably.
Case Study 1: Conducting a Reasonable Investigation
British Home Stores v Burchell
The leading case on this matter remains to be the 1978 EAT judgement in British Home Stores v Burchell – a case which Employment Tribunals still rely on today. Following investigations by the company, they had reason to believe that Miss Burchell abused the company’s scheme for staff purchases on four occasions and therefore made the decision to dismiss her.
The Tribunal found the dismissal to be unfair, but following an appeal from British Home Stores, the EAT found in favour of the company.
The test for this case was three-fold but, for the purposes of this blog, the most important factor for the decision was that when the employer formed its belief that the employee was guilty, it believed it had carried out as much investigation as was reasonable to reach its judgement.
It can be difficult – and near impossible – to give an exact guideline as to what will constitute a ‘reasonable’ investigation, as much of this will depend on the facts of the specific case. However, case law helps us determine what a Tribunal may consider to be reasonable or unreasonable.
Case Study 2: One-sided Investigation
Swan v The Governing Body of Our Lady and St John Catholic College
An employee was successful in her claim for unfair dismissal on the grounds that the investigation process was not reasonable.
The Tribunal did not believe that the employer had carried out an even sided investigation. It stated that the investigation officer did not follow up any lines of enquiry ‘which might exonerate the claimant other than listening to her evidence’. The Tribunal also found that, while it was one person’s word against another, the employer always believed the other person rather than the claimant.
The above makes it clear that a reasonable investigation process should be fairly handled and one person should not be automatically believed over the other.
This is particularly relevant when dealing with allegations of harassment or discrimination, for example. There is often a degree of apprehension in these cases, which may cause an employer to think they have to automatically believe the complainant and take immediate action against the accused – this would be a mistake. Employers need to be careful not to have a knee jerk reaction, even when dealing with allegations as serious as sexual misconduct and harassment. It is of course extremely important to take any complaints seriously and to deal with them sensitively and sufficiently; however, employers must remain fair and impartial to ensure that both parties’ rights are protected.
In this case, it was clear that there was extensive evidence which needed to be considered but was disregarded. This is a prime example of a knee jerk reaction in which lines of enquiry and evidence put forward by the accused was not followed up or even sufficiently considered before action was taken. If the same had been done, evidence may have come to light which could have led to a very different result.
Carrying out a Reasonable Investigation
It is important that an employer carries out a reasonable investigation in order to ensure the substance of any allegations are clear. This will then allow such allegations to be put to the employee in enough detail for them to respond meaningfully.
For example, if an employee has made an allegation of misconduct about another employee, the complainant should be asked simple questions such as who, what, where, when and why. This will enable the employer to investigate fully to obtain other evidence to corroborate the allegations and will also give the accused sufficient detail to be able to rebut the allegations if needed.
Whilst an investigation carried out by an employer does not need to be forensic, the case law shows that, at the very least, an employer should be following basic lines of enquiry, asking relevant questions, and looking at the evidence with a clear and unbiased viewpoint. Following this kind of process should help to ensure that an investigation would be regarded as reasonable in the circumstances.