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“There was a fight in the workplace between a technician and a salesman. The technician has admitted to punching the salesman so I don’t really see there is any need to investigate further. He is saying he was provoked, but in my view that is gross misconduct so I am going to dismiss. We are only a small employer and investigating what seems obvious is a waste of time. If I just invite him to a disciplinary hearing and dismiss I should be safe, shouldn’t I?”
The employer in these circumstances, even if it is a small employer, needs to consider requirements under Section 98(4) of the Employment Rights Act 1996 as clarified by case law. It has long been established that fairly investigating a potential disciplinary charge is an important procedural step in any disciplinary or dismissal of an employee. If the employer skips this step that can lead to a procedurally unfair dismissal.
Unfair dismissal rights only apply to employees with over 2 years’ service, so with those under 2 years the risks of not investigating can be less, provided of course the lack of investigation is not so poor that it might support the employee’s claims that they are being disciplined or dismissed for other automatically unfair reasons, such as whistle-blowing or discrimination, where there is no requirement for 2 years’ service to bring the claim.
Even where the disciplinary charge seems very obvious as in the above situation, an employer can still be liable for procedurally unfair dismissal if they make assumptions which would have been quickly set aside had the matter been investigated. If you walked into a room and one man had a smoking gun in his hand and the other was lying dead on the floor. Whilst it might be assumed what had happened there may be other potential plausible explanations for this scenario and so rushing headlong into making a decision without having all the information to hand could still lead to an erroneous decision.
In the example above the employer doesn’t know until it has investigated and statements are taken what preceded the assault. It may be relevant what was being said to the employee prior to him assaulting the other employee. How serious was the assault? The facts should be investigated first before the disciplinary charges are decided.
As with many areas in employment law, if the employer considers any mitigation against the offence, but ultimately decides to progress, that is in most circumstances (unless the decision is so unreasonable that another employer could not have decided the same) likely to be fair and reasonable. The greater legal danger for the employer is often excluding evidence that provides a potentially different explanation to any charges. The proper course to take in employment law is to investigate all explanations but then come to a reasonable decision based on all the evidence, even if some of the evidence runs against the weight of the disciplinary charges.
In the above example, the investigation would normally involve taking statements from those involved and any witnesses who saw or heard the affray. Remember it is important that all information and evidence from the investigation is enclosed with the disciplinary invitation letter and given to the employee a reasonable time before any disciplinary hearing.
Under ACAS guidance also remember that whoever was investigating the initial allegations should not be the subsequent disciplinary officer, particularly in cases of misconduct. The role of the investigation officer in the disciplinary procedure is essentially a fact finding role gathering evidence and deciding whether or not the issue should then go to a formal disciplinary hearing at which another officer of the company would make the disciplinary decisions.
Some issues could be informally investigated or would only require minimal investigation and other more complicated issues may require more detailed investigation and report.
ACAS publishes useful guidance on conducting workplace investigations, see http://www.acas.org.uk/media/pdf/o/5/Conducting-workplace-investigations.pdf
This advice is general in nature and it will need to be tailored to any one particular situation. As an RMI member you have access to the RMI legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.
Andrew Macmillan, Solicitor,
Motor Industry Legal Services