In Dronsfield v The University of Reading UKEAT/0255/18, the EAT considered whether an employee had been unfairly dismissed where views helpful to the employee had been removed from a final investigation report on the advice of the employer’s in-house solicitor.
In misconduct cases, for any subsequent dismissal to be fair, an employer should first carry out an adequate investigation into the employee’s conduct to determine whether there are grounds for disciplinary action to be taken.
The non-statutory Acas guide to conducting workplace investigations advises that:
• The investigation report should summarise the factual findings of the investigation.
• The investigator should restrict their conclusions to recommendations on whether the employer should take formal action, such as holding a disciplinary hearing. The investigator should not suggest a possible sanction or prejudge the outcome of the disciplinary hearing (page 32).
• The report should reflect the investigator’s own conclusions. While an investigator may seek advice from a third party such as HR, the conclusions should be their own (page 30).
Dr Dronsfield (the Employee) was an academic employed by The University of Reading (the Employer). Following a complaint arising from his having had a sexual relationship with a student, he was the subject of a disciplinary process which resulted in his dismissal. The decision of an Employment Tribunal that the Employee was fairly dismissed was overturned by the EAT and the matter remitted for a fresh hearing. The second Employment Tribunal held that the Employee was fairly dismissed. The Employee appealed that decision.
The Employer had issued detailed guidance on relationships between staff and students which the Employee was expected to follow. However, he could only be dismissed for conduct of an “immoral, scandalous or disgraceful nature incompatible with the duties of the office or employment.” (For short: “immoral, etc., conduct.”)
The disciplinary process went through the following stages: investigation and report and recommendations to the Vice-Chancellor; disciplinary charges and hearing; decision to dismiss by Vice-Chancellor on recommendation of the disciplinary panel; appeal to an external barrister. The disciplinary panel found the Employee guilty of
(1) failing to report the relationship, which had created a potential conflict;
(2) abuse of power to influence a vulnerable student; and
(3) breach of his duty of care to her.
It found this amounted to immoral, etc. conduct. The appeal officer upheld (1) and (3) and also considered that such conduct amounted to immoral, etc., conduct.
The principal ground of appeal concerned the Tribunal’s approach to the evidence that material in a draft of the investigation report was removed from the final report, in particular a statement that there was no evidence that the Employee’s conduct amounted to immoral etc., conduct and other conclusions favourable to his case.
As to this, the Tribunal’s decision, read as a whole, addressed the questions which the EAT in the first appeal had said should be considered. It found that the report had been amended on the advice of a solicitor that it should not set out evaluative conclusions on whether the Employee’s admitted factual conduct amounted to an abuse of power, a breach of duty or immoral etc., conduct. Those judgments should be left to any Disciplinary Tribunal that was subsequently appointed. The Tribunal properly concluded that adopting that approach was not unfair.
The appeal was therefore dismissed.