Can a disciplinary investigation be too thorough?

Gillian Cumming
Gillian Cumming
Senior Solicitor
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For an employer to establish, before the Employment Tribunal, that the decision to dismiss an employee on conduct grounds was fair, the employer must be able to show, amongst other things, that a reasonable investigation was carried out prior to taking the decision to dismiss. In a recently decided health care case, the Employment Appeal Tribunal looked at the question of whether an investigation can be too thorough.

In that case, an employee had been dismissed as a result of a third serious patient safety incident. The first two serious patient safety incidents had not been treated as disciplinary issues, but details of these two incidents had been included in an investigation report which was prepared for the dismissing officer. The Employment Tribunal (whose decision was then appealed to the Employment Appeal Tribunal) had been of the view that including the first two serious safety issues in the report fell foul of the need for there to be a ‘reasonable investigation’.

The Employment Appeal Tribunal subsequently disagreed with the Employment Tribunal. It commented that it was rare for a Claimant to complain that an investigation was too thorough, and noted that the Claimant had been given no reassurance by her employer either way as to whether the two initial issues would be taken into account, should there be a repeat.

A copy of the decision can be accessed here.

Whilst in this case, the consideration of previous incidents within the investigation report did not lead to a finding of unfair dismissal, this will not always be the case, so the decision reminds employers of the need to consider, in advance, the scope and nature of the investigation that needs to be undertaken in each situation arising. The question of the reasonableness of investigation may have been decided differently if, for example, unrelated matters had been included in the report which affected the dismissing manager’s decision, or previous incidents had been referred to where prior warnings had, in fact, expired.

If you would like us to provide you with guidance on how to conduct an investigation in your workplace, or we can be of assistance in relation to any other employment law matters, please do not hesitate to contact our team on 0141 331 5150.

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