Introduction
The role of the Investigating Officer in a disciplinary case is crucial. We have some recent examples where unions have argued that the Investigating Officer should not present the ‘management case’ to the disciplinary panel.
Most, if not all, of our clients’ disciplinary policies provide for the Investigating Officer to attend the disciplinary hearing to present their report.
Is this acceptable as part of a fair process? The short answer is yes, but only if the report is prepared and presented in a fair and objective manner.
What the Acas guidance says
- In the Acas guide “Investigations for discipline and grievance: Step by step”, under Step 6: What happens after an investigation, the guidance states:
“If a disciplinary hearing is the next step, an investigator might need to attend. However, they should only be there to give facts. They should not be there to give their opinion or present the case against the employee.”
- The investigator’s role (in earlier steps) is described as gathering evidence, interviewing witnesses and reporting objectively – not proving guilt.
Case law
Here are three key decisions, with expanded detail on the facts, findings and relevance to schools.
Mr I R Ramphal v Department for Transport UKEAT/0352/14/DA (EAT, 4 September 2015)
Facts:
- The Claimant worked for the Department for Transport as an Aviation Security Compliance Inspector. The Respondent launched an investigation into his use of hire cars and expenses. The manager appointed to investigate (Mr Goodchild) also had power to dismiss.
- Mr Goodchild’s first draft report was fairly favourable: he found the claimant’s explanations “plausible”, concluded his misuse was not deliberate, and recommended a final written warning rather than dismissal.
- However, after HR involvement, subsequent drafts changed: favourable findings removed, and the report concluded the claimant was guilty of gross misconduct and recommended summary dismissal.
Decision:
- The Employment Appeal Tribunal held there was procedural unfairness. It emphasised that the investigator’s report must be the product of his own investigations and should not have been subject to HR direction regarding his findings of culpability and sanction.)
Relevance:
- The case illustrates that if the investigating officer is influenced or directed in such a way that they effectively act as adversary/advocate, the process risks being unfair.
- If the investigator attends the hearing and presents the report in a way that goes beyond objective fact-finding (for example making evaluative judgments, arguing for dismissal), this could mirror the procedural concerns in Ramphal.
Dr J Dronsfield v University of Reading UKEAT/0255/18/LA (EAT, 2019)
Facts:
- The University of Reading asked an investigator to prepare a report on alleged misconduct. The first version of the report included favourable findings for the Claimant (i.e., that his conduct did not amount to a certain statutory standard).
- After input from in-house legal advisers, a subsequent version removed those findings. The EAT noted that “evaluative judgments in relation to the Claimant and his conduct should be properly left to the disciplinary panel to consider.”
Decision:
- The EAT held that the investigation report should not cross into making determinations on culpability or sanction – that is the disciplinary panel’s role.
Relevance:
- The investigator’s role ends after factual report and recommendation that there is a case to answer (if the policy permits – sometimes this is another senior leader’s decision) – they should not present the management case or make final conclusions about guilt or sanction.
- If the investigator attends the hearing, they must limit their presentation to factual findings and avoid advocacy.
The Governing Body of Tywyn Primary School v Mr M Aplin UKEAT/0298/17/LA (EAT, 22 March 2019)
Facts:
- Mr Aplin, a headteacher, was investigated by Mr Gordon (Local Authority officer) appointed to investigate alleged misconduct
- The investigating officer Mr Gordon produced a report criticised for:
- approaching the case on assumption the claimant was a child-protection risk;
- drawing on PASM minutes and police material not disclosed to the claimant;
- failing to produce an objective factual report, instead it was “laden with value judgments and conclusions”.
- At the disciplinary hearing on 17 May 2016, Mr Gordon presented the management case.
Decision/Findings:
- The Employment Tribunal found multiple procedural failings:-:
- :that by the time of the disciplinary hearing Mr Aplin had still not been provided with the PASM minutes and the police material on which Mr Gordon had drawn;
- that under the relevant policies Mr Gordon as the investigating officer should not have been involved in presenting the case and that he did so in a way which was “far from objective”;
- that Mr Hodges improperly retired with the panel and that he alone, rather than the panel, was responsible for the decision
- The EAT upheld the finding of constructive dismissal and discrimination against the claimant because the procedural failings were so serious that an inference of discrimination could be draw.
Conclusion:
- Investigating officers can attend a disciplinary hearing to present their report but must limit their role to explaining the investigation process, summarising factual findings and responding to questions about those findings.
- They must not express opinions about guilt, draw conclusions about sanction, advocate for dismissal or act as a management representative.
- The wording of the investigation report should clearly distinguish objective facts from any recommendation, and avoid evaluative language about culpability or sanction.
Disclosure of all relevant evidence (including material relied upon by the investigator) must be ensured to the employee in advance – failure to do so may lead to procedural unfairness (as in Tywyn).
