Lydia Cammiade Associate
Misconduct dismissals - are employers required to hold an investigation hearing?
The Employment Appeal Tribunal has confirmed in the recent decision of Sunshine Hotel v Goddard, that employers are not required to hold a separate investigation hearing, as well as a disciplinary hearing, when dismissing an employee for misconduct.
The law remains clear on what makes a fair dismissal for misconduct. Crucially, it depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably, in treating the conduct as a sufficient reason for dismissing the employee.
In determining whether the employer acted reasonably, the Employment Tribunal applies the long standing test established in the case of British Home Stores v Burchell, which is as follows:
- The employer must believe the employee to be guilty of the misconduct for which they are being dismissed;
- The employer must have in their mind reasonable grounds upon which to sustain that belief;
- The employer must have carried out as much investigation into the matter as was reasonable in all the circumstances of the case.
The extent of the investigation required will depend on the specific circumstances. Employers should note paragraph 5 of the ACAS code which 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 investigation stage will be the collation of evidence by the employer for use at any disciplinary hearing”.
It is clearly not a requirement that an investigation hearing is needed in all cases when dismissing for misconduct. What is required is that the employer carries out as much investigation as is reasonable in all the circumstances. This may be a meeting with the employee and others, or gathering documentary evidence.
However, a few words of warning are needed. In Sunshine Hotel v Goddard, the Employment Appeal Tribunal confirmed that Mr Goddard’s dismissal was unfair; not because there was no investigation hearing, but because the employer did not carry out adequate investigation as was reasonable in all the circumstances. In this case, the employee, a hotel night porter, was accused of sleeping on the job. The only investigation carried out by the employer was to review CCTV footage of the night in question without the presence of Mr Goddard. Crucially, Mr Goddard was never given an opportunity to provide a full explanation before he was dismissed at a disciplinary hearing.
Employers must ensure they follow any disciplinary policy in place, which may require an investigatory meeting or hearing, to minimise the risk of an unfair dismissal claim.
Please do not hesitate to contact one of the team should you require advice in relation to dismissal for misconduct, unfair dismissal claims or disciplinary policies.