News

Misconduct in the Workplace: an Investigation

Posted 08/10/2019

Dronsfield v The University of Reading

A recent Employment Appeal Tribunal (EAT) decision – Dronsfield v The University of Reading - provides useful guidance for those tasked with undertaking investigations into alleged misconduct.

Background:

Dr Dronsfield was a professor at the University and admitted sexual relations with a student. An investigation was commenced into his conduct. 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 department head and an HR partner were jointly appointed to investigate factual allegations that Dr Dronsfield had:

  1. Had a sexual relationship with a student without reporting it, creating a potential conflict of interest.
  2. Abused a position of power.
  3. Acted in breach of duty of care towards students.
  4. Held late night meetings with female students involving alcohol.

The Acas guide to conducting workplace investigations advises:

  1. The investigation report should summarise the factual findings of the investigation.
  2. The investigator should restrict their conclusions to recommendations on whether the employer should take formal action, such as holding a disciplinary hearing. The investigator should not suggest a possible sanction or prejudge the outcome of the disciplinary hearing.
  3. The report should reflect the investigator’s own conclusions. While an investigator may seek advice from a third party such as HR, the conclusions should be their own.

Outcome

A draft investigation report was prepared, but before the investigators’ 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 wrong doing. On the advice of the in-house lawyer the final version of the report omitted these conclusions (conclusions potentially favourable to Dr Dronsfield), including opinions there was no evidence his conduct had been immoral, scandalous etc.

At the disciplinary hearing Dr Dronsfield was dismissed for gross misconduct.

Appeal

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. He lost his unfair dismissal case and appealed.

The EAT sent the case back for fresh hearing before an Employment Tribunal, specifically to consider the relevance of the changes to the investigation report and the investigators’ reasons for amending the report. The Tribunal again ruled the dismissal was fair and Dr Dronsfield subsequently lost again before the EAT.

Conclusions:

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”.

This case serves to remind HR partners/investigators as to their role and the importance of adhering to Acas guidance. Failure to do so could undermine a subsequent dismissal and involve an employer in a costly and time-consuming dispute.

If you require employment law advice regarding misconduct or any other employment law matters, please contact David Dixey on 01376 320456 or dd@holmes-hills.co.uk.


David Dixey

Posted 08/10/2019 by:
David Dixey
Senior Chartered Legal Executive in Litigation & Employment Teams



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