Dear Auntie

I have read a case recently in which the Court decided that only the information known by the person dismissing the employee is relevant to whether the reason for dismissal was fair or not.

Does that mean that we can withhold relevant information from the decision-maker and get away with dismissing an employee where we otherwise wouldn’t?

Dodgy Dave, HR Maverick

Dear Dave

The case you are referring to is Orr v Milton Keynes Council which was decided recently by the Court of Appeal. The key outcome of the case was that whether a dismissal is fair must be judged solely on what the decision-maker knew or ought to have known at the time when the decision was taken. In this case, facts which would have established the claimant’s innocence which were known to the claimant’s line manager but withheld from the decision maker were found not to be known by the “employer”, and therefore not relevant to the reasonableness of the decision to dismiss.

Although this might suggest that employers can make their lives easier by hiding information from decision-makers, you must approach this outcome with caution. Not only is it seen by commentators as a controversial decision (with an important dissenting judge), but deliberately withholding evidence from the decision-maker is likely to be viewed very poorly by an employment tribunal, particularly in discrimination claims where it might amount to victimisation. This case does not remove the obligation from the employer to conduct a proper investigation and employment tribunals are now much more likely to analyse whether a proper investigation has been carried out to determine whether the decision-maker knew or ought reasonably to have known the key facts.

The Investigation

When carrying out an investigation in relation to the conduct of an employee with a view to taking disciplinary action (such as dismissing the employee), always refer to the ACAS Code and its guidance and bear in mind the following key points.

  • Make sure that the investigation happens without unreasonable delay.
  • In some cases one or more investigatory meeting(s) may be required, for example to interview other employees (meetings are likely to be required if it the conduct is serious enough for dismissal to be a potential course of action), in less serious cases just a collation of evidence might be suitable;
  • You must carry out as much investigation into the matter as is reasonable in all the circumstances. This might mean, for example if the allegation is relatively minor (e.g. lateness) very little investigation is required (such as just asking the employee’s line manager), but if the allegation is very serious and could lead to dismissal (e.g. allegations of theft) then there might need to be an in-depth review of evidence and a number of interviews with witnesses and other colleagues. The nature and extent of investigations will depend on the seriousness of the matter – the more serious it is, the more extensive the investigation should be.
  • The individual undertaking the investigation should not assume that the allegations are correct, but should approach the fact-finding exercise with an open mind.
  • The investigation process should give the employee a fair opportunity to explain themselves. This could include interviewing the employee, as well as asking the employee to provide any document he or she feels are relevant, and whether he or she would like the witnesses to be asked any specific questions.
  • If necessary to suspend the employee (this would normally be with full pay and benefits, unless the employer has a clear right to suspend without pay)  during the investigation (e.g. in gross misconduct cases, or where the employee’s presence in the company’s offices poses risks to the investigation or the employer’s business) the suspension should only be imposed after careful consideration and the suspension should be kept as short as possible. It is very important to make clear to the employee that the suspension is not an assumption of guilt, and does not constitute disciplinary action.

Disciplinary Action

Once the investigatory procedure has been carried out it may be decided that there is a disciplinary case to answer. If this is the case, the employee should be notified in writing:

  • include sufficient information for the employee to answer any allegations of misconduct;
  • include the details of possible consequences;
  • give time and venue of the disciplinary meeting;
  • explain the procedure which will be followed;
  • advise the employee of their right to be accompanied to the meeting; and
  • make available copies of any relevant papers and witness statements (in some cases, this may require keeping names confidential).

The Disciplinary Meeting

  • Where possible, different people within your organisation should carry out the investigation and the disciplinary hearing.
  • Investigatory meetings and disciplinary meetings should be kept separate (the employee has a right to be accompanied to the disciplinary meeting, but not the investigatory meeting). Even if, for example, the employee admits guilt at the investigatory stage, a disciplinary meeting would still be required.
  • The employee should be given the opportunity to answer any allegations made.
  • The decision-maker should not form an opinion hastily he or she should approach the disciplinary with an open mind.
  • The employee must also be given the right to appeal the decision taken.

Most Importantly

This can be a tricky and time-consuming area, but if you make sure you refer to (and follow) the ACAS Code throughout the process, try to make sure that the investigation and disciplinary action are fair and seek legal advice if any difficult issues arise – then you should be in a strong position.

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