A helpful reminder from the EAT where practicable, different people should carry out the workplace investigation and disciplinary hearing.

Background

In Northbay Pelagic Ltd v Anderson UKEATS/0029/1 three companies owned shares in Northbay, which was managed by a Board of 5 directors supported by a management team. The company owning the minority stake in Northbay was owned by the Anderson family. Mr Colam was the person who controlled the other two company shareholders.

Mr Colam and the Anderson family fell out. The Claimant (Colin Anderson) and his father (Chris Anderson) were suspended and later dismissed, as was a third member of their family.

Seven allegations were put to Colin Anderson; five were upheld to justify his dismissal.

Three separate and independent HR Consultants were appointed to deal with the process. While the judge was not told how they divided their duties, they each appear to have taken part in some investigations, while also chairing hearings. Ms Newton, for example, was partly involved in the investigation into Chris Anderson, but also chaired Colin Anderson’s disciplinary hearing, deciding to dismiss him. 

Tribunal Claim

Ms Newton’s involvement into Chris Anderson’s investigation was a point of challenge in the unfair dismissal claim by Colin Anderson. Ultimately, the Tribunal found that he had been unfairly dismissed.  Northbay appealed.

Employment Appeal Tribunal

Focusing on the lack of alleged fair process, the EAT held:

“Section 201 of the Trade Union and Labour Relations (Consolidation) Act 1992 required the ACAS Code on Disciplinary and Grievance Procedures to be taken into account. Paragraph 6 of the Code indicates that where practicable the same person should not conduct both the investigation and the disciplinary hearing. The purpose of this provision is so that the decision maker brings an open mind to the task of deciding the issues raised at the hearing and is not influenced by considerations that may be relevant to the investigation but are irrelevant to the hearing. But in this case Ms Bailey investigated the Claimant and Ms Newton conducted the disciplinary hearing. The ACAS Code does not address the situation that arose in the present case.”

While the unfair dismissal claim was ultimately successful, the EAT found that where Ms Newton’s involvement in Chris Anderson’s investigation was deemed to be ‘peripheral’and “where there was no connection between the cases” this had no impact on the ultimate outcome.

The EAT went on to find that:

“The crucial issue is whether the allegations were sufficiently connected that to investigate Mr Anderson, senior was in effect to investigate the Claimant… Given the fact that Ms Newton had not investigated the allegation against the Claimant and given that the information she had gathered from her investigation of Mr Anderson senior was peripheral to Ground 2, I do not consider that there was a procedural flaw in the process.”

Summary

Had there been greater overlap in the investigations, it is likely that this would, of itself, also have resulted in an unfair dismissal. Structuring the investigations in this way and allowing one person to chair a disciplinary hearing while also having involvement in a related investigation, jeopardised the fairness of the overall process.

This case is a helpful reminder that when undertaking workplace investigations, it is very important at the outset to have clear delineation in roles between workplace investigator and disciplinary chair. The same applies at any appeal stage, with the disciplinary appeal chair should have no previous involvement in the matter (and, ideally, should be more senior than the disciplinary chair). Setting clear boundaries helps demonstrate a transparent and fair process. If those boundaries become blurred, the dismissal may be unfair. Any failure to comply with the ACAS code can bring an uplift in compensation of up to 25%.

It is also a useful reminder that the ACAS code says that where practicable the same person should not conduct both the investigation and the disciplinary hearing.  Having someone independent to conduct the investigation is important to the integrity and fairness of any disciplinary process.   

If you have a sensitive or complex workplace investigation, contact us for a robust solution to ensure you act appropriately and fairly.