Investigations into alleged gross misconduct should be conducted reasonably. Reasonableness includes not accepting vague or generic allegations and questioning further to get the specifics of the situation.

Reasonable Investigation – unfair dismissal

Gormley v City of York Council

THE LAW

The law on unfair dismissal is found in section 98 Employment Rights Act 1996.

Under this section, the dismissal must be for a fair reason (one of which is conduct).

The dismissal must also be conducted in a reasonable manner, dependent on the size and resources of the organisation.

Failure on either of those points could render the dismissal unfair.

British Home Stores Limited v Burchell [1978] set out a now well-known test to be applied when determining if the dismissal was conducted in a reasonable way. The test:

• Did the respondent have a genuine belief in the misconduct of the claimant at the time of the dismissal?

• Was that belief based upon reasonable grounds?

• Did the dismissal follow a reasonable investigation and a reasonable procedure?

The “Burchell test” is used by ETs to come to a decision on what a hypothetical reasonable employer would conclude in the same circumstances, and therefore if the decision to dismiss was fair and reasonable under section 98 of the above act.

It is important to note however that the “Burchell test” does not impose on employers the need to conduct an investigation on a par with an investigation by the police, for example. In Ulsterbus Limited v Henderson [1989] the Northern Ireland Court of Appeal confirmed that it was not for the reasonable employer to carry out a quasi judicial investigation into misconduct allegations, or confront and cross-examine witnesses, and that failure to do so does not always lead to an unreasonable outcome.

Employers should also consider any mitigating circumstances around the alleged misconduct. These circumstances can include the context in which the allegation happened, or the words that were said. They should also take into account the impact on the aggrieved party of the allegation, the accused employees disciplinary record and their length of service. These are relevant in determining whether the incident was an isolated event or part of a pattern of behaviour, amongst other things.

THE FACTS

The claimant was employed as a mental health practitioner by the respondent and was a long serving employee with a clean disciplinary record.

It was alleged by a junior colleague that the claimant had made sexual comments and “unwelcome innuendos” at work, and other comments that the colleague deemed to be “inappropriate behaviour in the workplace”. As a result, the claimant was suspended and subject to an investigation into their behaviour.

In the respondent’s report following its investigation, in which it was decided to progress to a formal disciplinary hearing, it was said that there was evidence that the claimant had engaged "in behaviour including unwanted innuendo and unwelcome jokes or comments that are sexist".

A disciplinary hearing was held, the outcome of which was dismissal for gross misconduct. The dismissal letter said that the claimant had “engaged in behaviour including unwanted innuendo and unwelcome jokes or comments that are sexist” and noted that a colleague had described the claimant as a “misogynist”. The letter also concluded that "any reasonable person would realise" the practitioner's behaviour was "likely to offend".

The claimant brought claims of unfair dismissal and wrongful dismissal.

EMPLOYMENT TRIBUNAL (ET)

Note that as an employment tribunal case, this is not binding authority. ET cases may be persuasive on other tribunal decisions, but unlike those courts higher in the system (EAT, CoA, Supreme Court), they do not have to be followed by other courts and therefore the outcome is only indicative of how a similar case might be treated.

The ET was critical of the respondent’s investigation, finding that the decision to dismiss on grounds of gross misconduct "was not formed on reasonable grounds after a reasonable investigation".  This was due to the respondent’s failure to ask follow-up questions. The allegations were, according to the ET, vague and “lacking specificity and largely generic” as to what innuendo, unwelcome jokes or comments had actually been made by the claimant and the circumstances in which they were made, and failing to address these in the investigation meant that it was inadequate and unreasonable and the Burchell test was not met.

Overall the ET found that it was not reasonable to conclude that the claimant’s comments were sexual intimidation or bullying, as the evidence did not show that colleague felt vulnerable or was offended by what was said. As a result, the decision to dismiss lay outside the band of reasonable responses and the claim succeeded.

The claimant was awarded £60,700 in compensation.

Considerations for employers

This case serves as a reminder for employers of the importance of a fair and thorough investigation prior to disciplinary. It is not enough simply to rely on vague evidence that lacks detail. Especially where gross misconduct is concerned, employers should look into every angle of the case and only progress from the investigation when they have specifics as to what happened and in what context. Failing to do so, as in this case, can lead to an unreasonable decision and a loss at ET.