Investigating the charges

There are no circumstances in which a failure to investigate and follow a fair procedure can be justified, no matter how flagrant or obvious the misconduct. The employer must always carry out a fair investigation before any disciplinary action is taken.

The basic purpose of an investigation is to establish the facts. It should be conducted by a management representative. If the disciplinary procedure requires the investigation to be carried out by a particular grade of management, this must be complied with. The person chosen to conduct the investigation should not have any pre-existing bias against the worker.

When carrying out the investigation, the employer is not expected to satisfy a criminal standard of proof — guilt beyond reasonable doubt. Instead, it is enough to carry out a reasonable investigation and to establish a genuine belief on reasonable grounds that the employee carried out the misconduct (British Home Stores Ltd v Burchell [1978] IRLR 379).

When faced with two conflicting accounts of an incident, employers are not obliged to believe one party and disbelieve the other. It is “perfectly proper” for the employer to say that it is unable to resolve the conflict of evidence, in which case the employer should give the alleged wrongdoer the benefit of the doubt (Salford Royal NHS Foundation Trust v Roldan [2010] EWCA Civ 522).

If an employer reasonably believes that one of a number of employees is guilty of dishonesty and despite a proper investigation, cannot identify the culprit, it can be reasonable to dismiss all those who could have been responsible (Monie v Coral Racing Limited [1981] ICR 109). A dismissal in these circumstances would be based on damage to trust and confidence, and it ought to be with notice (Hawes v Curtis Limited [2012] UKEAT 0029/12/0106). Bear in mind that in this situation a tribunal will expect the employer to reach a particularly high standard of investigation (see below) asking itself, in particular, what might have motivated each of those accused to carry out the misconduct, and whether any or all of them were acting “out of character”.

Provided the employees concerned have enough qualifying service to bring a claim for unfair dismissal, an employer in a unionised workplace should be very wary of carrying out dismissals in these circumstances. Moreover, given the proliferation of surveillance tools in use in today’s workplace, including retail till codes, CCTV, computer passwords, tracking devices and so on, in practice, this situation is less likely to arise than in the past.

The Acas Guidance emphasises the importance of the employer keeping an open mind and looking for evidence that supports the employee’s case as well as evidence against. This means taking statements from all members of staff with a relevant contribution to make, and not just those who support the case against the employee.

The more serious the potential consequences for the employee, the higher the standard of investigation expected.

For example, in Salford Royal NHS Foundation Trust v Roldan [2010] EWCA Civ 522, a Filipino nurse was accused of mistreating a patient, based on the evidence of a colleague. The fact that her dismissal for gross misconduct spelled the end of her nursing career, the loss of her work permit and deportation meant that a particularly high standard was needed.

Similarly, in Crawford v Suffolk Mental Health Partnership ([2012] EWCA Civ 138), a tribunal decided that a nurse was unfairly dismissed following an allegation that she used inappropriate restraint methods on an elderly dementia patient. The dismissal was unfair because the hospital conducted a staged reconstruction of the incident without inviting the claimant and her representative.