In the recent case of Dronsfield v The University of Reading, the Employment Appeal Tribunal has confirmed that a dismissal was not unfair despite the fact that alterations were made to an investigation report following advice from an in-house lawyer.
Background
The claimant, Dr Dronsfield, was employed as a professor at Reading University. University rules stated that he could be dismissed if he was guilty of conduct which was of an “immoral, scandalous or disgraceful nature incompatible with the duties of the office or employment”.
Following a complaint it received, the University instructed a fellow professor to conduct an investigation into certain allegations involving the claimant. These related to an alleged sexual relationship with one of his students, his failure to report this and his conduct with other students.
During the investigation, the claimant admitted to having a sexual relationship with the student and not reporting this. When the investigation was complete, the investigating professor drafted a report setting out his findings. It included a statement that, in his opinion, the claimant’s actions did not meet the burden of being immoral, scandalous or disgraceful in nature.
Following advice from the University’s in-house lawyer, a final version of the report was produced that omitted the investigator’s opinion about the severity of the claimant’s actions and instead set out that there was enough evidence to warrant a disciplinary hearing.
On the basis of the amended report, the allegations were put before a disciplinary committee, which decided to dismiss the claimant.
The claimant brought unfair dismissal proceedings, asserting that the amendments made to the report following the in-house lawyer’s advice meant that his dismissal was unfair.
The decision
The claims were unsuccessful at Tribunal and the claimant’s appeal to the Employment Appeal Tribunal (EAT) was also rejected.
The EAT held that the Tribunal was entitled to find that the amendments made to the report were only intended to ensure that the report did not stray into assessing whether the claimant’s actions amounted to “immoral, scandalous or disgraceful” conduct. This was rightly a matter for the disciplinary panel, not the investigator, whose role was to investigate the allegations, set out the facts and determine whether there was a case to answer.
Despite the changes made, the report still fairly set out the investigator’s position and the amendments did not result in a false or incomplete picture being given to the disciplinary panel.
Comment
The case is a useful reminder of the limited role investigators should play in the disciplinary process. Their remit should be restricted to establishing the facts and determining whether there is enough evidence to warrant a disciplinary hearing. Investigators should not opine on the appropriate sanction, which should be left to the person(s) conducting the disciplinary hearing.
Although in this case, changing the investigation report did not lead to a finding of unfair dismissal, interference with investigation report should be minimised. Employers should bear in mind the dangers of HR overstepping the mark with their input. In the case of Ramphal v Department for Transport (2014), the EAT held that an employee had been unfairly dismissed when an investigation report, which originally recommended a written warning, was changed by HR to suggest the allegations amounted to gross misconduct.
Kerry Garcia