When we deliver training sessions on investigations, we always stress that they need to be undertaken in an unbiased way. A fair and unbiased investigation can help to limit the likelihood of a Tribunal claim.
For a disciplinary or grievance procedure to be fair, a reasonable and objective investigation must be undertaken to gather all relevant factors before-hand by an investigation officer.
The role of an investigation officer is to find all the facts relating to the case. This includes evidence that supports, and contradicts, the allegation. What they should not do is make any decisions on the outcome of the investigation.
A recent case in the Employment Tribunal has emphasised the importance of a reasonable, unbiased and objective investigation to be undertaken by the investigation officer.
The Governing Body of Tywyn Primary School v Mr M Aplin UKEAT/0298/17/LA
The EAT concluded that the claimant had been unfairly dismissed for the reasons of sexual orientation discrimination.
The dismissal was unfair due to a reasonable and objective investigation being absent.
The Employment Tribunal heavily criticised the investigation report produced by the investigation officer for the following reasons:
- The investigation officer approached the investigation with bias, on the basis that the claimant was a potential danger to children.
- The investigation officer failed to provide material intended to be relied upon to the claimant 48 hours in advance of the disciplinary hearing.
- The investigation report produced by the investigation officer was “laden with value judgements and conclusions which were hostile to Mr Aplin”.
Chhabra v West London Mental Health NHS Trust  UKSC 80
The Supreme Court criticised the investigation conducted by the investigation officer in this case for the following reasons:
- The role of an investigation officer is one of factual finding. The investigation officer is not to determine, or make a conclusion, based on disputed facts. Evidence for and against the allegation must be collated.
- The investigation report must be a ‘product’ of the investigation officer. In this case it was not. Extensive amendments had been suggested by an individual who was not to be involved in the case (in this case a member of the HR department). The investigation officer accepted several of the suggested amendments. They were extensive amendments and had the effect of stiffening the recommendations with regard to the potential action to be taken against Mr Chhabra from an initial recommendation of misconduct to the ultimate recommendation of gross misconduct.
Considering the judgements from both cases, investigation officers must ensure the following:
- An objective, and unbiased, approach must be taken by the investigation officer when conducting an investigation for a disciplinary procedure to be fair.
- All material that is intended to be relied upon by the investigator must be disclosed to those being disciplined a minimum of 48 hours prior to the disciplinary hearing along with the invite to disciplinary. Failure to provide such documents may limit the ability for the material to be relied upon.
- The investigation report must be factual and objective. The investigation officer’s responsibility is one of fact finding. The information collated into the investigation report will then be relied upon for another individual do make a decision in relation to the disciplinary procedure.
- The investigation Report produced is their own ‘product’ based on the information that they have collated during the investigation.
- The investigation officer must undertake a fact-finding mission. Their role is not to make a decision on any disputed facts. The facts that are collected by the investigation officer will allow a decision to be made by a separate disciplinary officer.
A failure to undertake a reasonable, objective and unbiased investigation is likely to affect the fairness of a disciplinary procedure and is therefore one of the most important parts of a disciplinary procedure.
In order to ensure a fair procedure is undertaken, employers must be aware of how to conduct a correct investigation. We can provide advice, guidance and training in relation to all procedures and the necessary investigations or you can ask us to carry out the investigation for you. If you require any advice or support, please contact us on 0114 3032300 or [email protected]
Have a read of our HR Services and Why an ‘investigation’ is your most powerful tool in any HR situation.