When dealing with potential misconduct, disciplinary officers will rely on the contents of the investigation report in order to determine whether an employee’s conduct falls within a relevant category and decide what sanctions to impose.
But where does the role of the investigator end and that of the disciplinary officer begin? More specifically, what are the limitations of an investigation report that employers need to be aware of in order to ensure a fair procedure?
Defining the boundaries of an investigation report
The purpose of an investigation report is to facilitate some sort of action based on the official findings it presents, whether that be a termination of employment, additional training, or some other form of corrective action.
In simple terms, an investigation report should:
While this might seem like a straightforward exercise, those involved in this stage of the disciplinary process often misjudge the boundaries of an investigation report and what it should and shouldn’t include, giving rise to legal issues. In 2017, for example, an employee succeeded in their claim for unfair dismissal due to the fact that the investigation report, on which the employer had based its decision, made reference to two previous acts of misconduct for which no disciplinary action had been taken, rendering the dismissal procedurally unfair.
Now, a recent case has further reinforced the need for employers to understand the scope of an investigation report and, in particular, has provided a useful reminder of the differences, and limitations, of an investigatory procedure versus a disciplinary procedure.
Dronsfield v The University of Reading
The claimant in this case, Mr Dronsfield, was a tenured professor employed by the University of Reading who admitted to engaging in a sexual relationship with one of his students. In accordance with the relevant statute governing the university, Dr Dronsfield could only be dismissed for “conduct of an immoral, scandalous or disgraceful nature incompatible with the duties of the office or employment”.
A head of department and an HR partner were jointly appointed to undertake an investigation into the allegations against Dr Dronsfield, chiefly that he had failed to report the relationship and had abused his position of power. The pair then produced a joint investigation report, drafts of which were examined by the university’s in-house solicitor.
On review, the in-house solicitor noted that the report drew conclusions on whether the employee was guilty of misconduct and recommended that these conclusions be removed, advising that the investigation should be limited to findings of fact. As such, initial findings that were favourable to Dr Dronsfield’s case were omitted from the final version of the report and a conclusion was made that Dr Dronsfield had breached his duty of care towards his students. Accordingly, a disciplinary panel was assembled, and following a hearing, Dr Dronsfield was dismissed for gross misconduct.
Employment Tribunal and Appeal
After unsuccessfully appealing the decision through the university’s internal procedure, Dr Dronsfield brought a claim for unfair dismissal, suggesting that the report had been changed in order to make his dismissal more likely.
The Employment Tribunal at the first instance dismissed Dr Dronsfield’s claim, finding that he had been fairly dismissed; however, on appeal, the case was remitted back to a second Tribunal for reconsideration. Here, the Tribunal was tasked with determining whether the redactions had been made because the investigating officer had changed his opinion or due to some other reason.
Ultimately, it echoed the previous Tribunal’s verdict.
It held that:
- The investigating officer had signed off the report in good faith as an accurate representation of his conclusions.
- It was objectively fair and reasonable for the investigators to act on the advice given by the university’s solicitor, and for them to limit their conclusions accordingly to whether there was a case to answer.
- The decision to remove evaluative conclusions did not compromise the accuracy or thoroughness of the report.
Dr Dronsfield appealed once more on the grounds that the Tribunal had not sufficiently addressed the arguments he had put forward as to why amending the investigation report had rendered his dismissal procedurally unfair. However, the Employment Appeal Tribunal (EAT) maintained that the Tribunal had addressed these arguments on remittal.
Moreover, the EAT held that:
- The investigators were following accepted practice by leaving it up to the disciplinary panel to determine whether Mr Dronsfield’s conduct amounted to “an abuse of power, a breach of duty, or conduct of an immoral, scandalous or disgraceful nature” (gross misconduct).
- There was nothing to suggest that any evidence had been withheld from the disciplinary panel.
- The changes to the investigation report had been considered at the internal appeal stage, and the Tribunal had taken into account the whole process followed by the university, including the appeal, in reaching a conclusion of fairness.
Director of Legal Services
We know from our own data that disciplinary processes are the most common sort of issue our clients deal with. As such, this reiteration of the difference between the investigation and disciplinary stage of the process will be a useful reminder for all employers, especially as they can sometimes become blasé about these procedures. Sometimes the boundaries between the investigation and disciplinary stage can become blurred – clearly, the investigator has to make some limited evaluations on the evidence in order to decide whether or not there is even a case to answer; however, this case, and the ACAS guidelines, make it clear that the investigator should not suggest a possible sanction or prejudge the outcome. That is a job for the disciplinary chair.