FAIR DISMISSALS NEED FAIR INVESTIGATIONS

When the statutory dispute resolution procedures were introduced in 2004 their aim was to reduce the number of Employment Tribunal claims being lodged.  It is widely agreed that they failed miserably and led to an increase in claims, of up to a third in one year!

Part of the reason for their unpopularity was that there were serious consequences for both employers and employees if they failed to comply "to the letter" with the procedures.  Employers could face liability for automatically unfair dismissal and have to pay up to an additional 50% compensation.

As from 6th April 2009 the statutory disciplinary and grievance procedures have been revoked and replaced by the Employment Act 2008 and a new ACAS Code of Practice. 

Despite the changes, the principal steps to follow during a disciplinary process mirror the old procedures. The Code is less prescriptive and instead stresses the importance of acting fairly, promptly and consistently when following a disciplinary or grievance process.  Although a dismissal will no longer be automatically unfair if you fail to follow the procedures, failing to do so could make the dismissal unfair and lead to an increase in compensation of up to 25%.

A Reasonable Investigation

The Code explains that it is important to carry out necessary investigations of potential disciplinary matters.  The reasonableness of the employer's investigation will be considered by the Employment Tribunal in any claim for unfair dismissal. 

The basis of the Tribunal's approach is that in many cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view and another quite reasonably take another.  This applies to the reasonableness of an investigation as well as to the reasonableness of a decision to dismiss. 

The investigation process should be based on the facts of each matter and be reasonable with regard to all the circumstances, including the gravity of the charges, their potential effect upon the employee's reputation/employment, and the prospects of future employment.  

Evidence obtained by surveillance

In the case of McGowan v Scottish Water [2005] IRLR 167 the employers suspected Mr McGowan of falsifying time-sheets.  After various discussions based on practical and realistic considerations, the employers decided to hire private investigators to undertake covert surveillance of Mr McGowan's home.  This lasted a week and, as a result, their suspicions were confirmed and M was dismissed.  Mr McGowan claimed the dismissal was unfair as the surveillance breached his right to respect for his private and family life.
 
The Employment Appeal Tribunal held that, although surveillance may be breach the Human Rights Act, if the surveillance is performed proportionately and is relevant to the heart of the investigation, then it is legitimate. 

In short, as long as the evidence gathered is proportionate and pertinent to the case then there is a strong indication that the Employment Tribunals will view such evidence as admissible.

But, when you've carried out a reasonable investigation and have a good reason to dismiss  its still important to follow the procedures in the Code to  avoid the risk of the dismissal being unfair.

Written and supplied by Lorraine Teague, Partner, Shakespeare Putsman LLP, Birmingham
www.sp-legal.co.uk | 0121 237 3000