The Employment Appeals Tribunal (‘EAT’) confirms there is no legal requirement to hold a separate investigatory hearing and disciplinary hearing in every case, in order for a dismissal to be fair.
- The Law
Under section 98(4) of the Employment Rights Act 1996 (‘ERA’) a dismissal is fair provided there had been ‘as much investigation into the matter as was reasonable in all the circumstances’. An employer should always strive to follow the Acas Code of Practice on Discipline and Grievance (the ‘Code) when conducting a disciplinary process, as an Employment Tribunal (‘ET’) will take the Code into consideration when determining if an employer has acted reasonably.
Paragraph 5 of the Code states that, “it is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing."
The employee was invited to an investigation meeting and the invitation letter stated that if there were any substance to the allegations of misconduct, there would be a disciplinary hearing. This hearing actually turned out to be the disciplinary hearing. The employee was dismissed and brought claims for unfair and wrongful dismissal. The ET agreed that the dismissal was unfair and the employer appealed on the basis that the tribunal had erred in considering that a failure to hold an investigatory meeting was determinative in rendering the dismissal unfair.
The EAT held that there is no requirement within the Code, case law, or section 98(4) of ERA to always hold an initial investigatory hearing before holding a disciplinary meeting in order for the dismissal to be fair. Section 98(4) only requires the employer to have acted reasonably.
The EAT nevertheless upheld the ET’s decision that the dismissal was unfair and identified that there had not been a proper investigation. It highlighted that enough of the basis of the allegation of misconduct must be conveyed to the employee to allow them to prepare to meet the allegation effectively at the disciplinary hearing. It identified that this did not happen in this case and the employee did not have an opportunity to prepare for allegations against him.
- Implications for Employers
The confirmation that separate investigatory and disciplinary hearings are not required should be considered on a case by case basis, the decision does however provide useful clarification that doing so is not always required.
Exceptions include when there is a collective agreement with a trade union or where a disciplinary policy, or a contract of employment, provides that a separate investigatory meeting is required. It is therefore important to check whether any of these require a separate investigation hearing, to avoid possibly dismissing an employee unfairly.