G was suspended following allegations of misconduct.

An investigation took place which amounted to no more than two managers sitting down and reviewing some CCTV footage.

On 14 April G was invited to an investigatory meeting. The confirmation letter said that if there was any substance to the allegations of breaching company rules whilst sleeping on duty then a disciplinary hearing would take place.

In the event there was no disciplinary hearing, and G was dismissed following the investigatory meeting.

G brought claims for unfair and wrongful dismissal.

Tribunal Proceedings

The Employment Tribunal found there to have been a serious procedural failing because there wasn't any investigatory meeting. Therefore, G wasn’t given an opportunity of providing a full explanation before any disciplinary hearing. The Judge went onto say that this was “a basic employment right.”

The company appealed.

The Employment Appeal Tribunal (“EAT”)

The company’s appeal was based upon the Employment Tribunal Judge’s finding of there being “ a basic employment right”. It was contended that by saying as much, the Judge was suggesting there was “a basic employment right” to both an investigation and a disciplinary hearing in order for a dismissal to be fair in law.

The EAT Judge dismissed the appeal finding that the Employment Tribunal Judge had looked beyond just the question of there being no investigatory meeting, including the fact that there hadn’t been a proper investigation into the allegations.

The need for a proper investigation in conduct related dismissals forms part of the three stage guidance formulated in the leading case of British Home Stores v Burchell [1978] ICR 303. In essence, the guidance includes a requirement that the employer should have “carried out as much investigation as was reasonable in all the circumstances of the case”.

Comment

What comes out of this decision is that unless an employer is bound by some contractual requirement or policy to always conduct an investigatory meeting, then it is not a mandatory requirement.

The ACAS code at para 5 says:

“It is important to carry out necessary investigations of potential  disciplinary matters without reasonable 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 investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing.”

In ILEA v Gravett [1988] IRLR 497 the Employment Judge said:

“There will no doubt come a moment when the employer will need to face the employee with the information which he has. This may be during an investigation prior to a decision that there is sufficient evidence upon which to form a view or it may be at the initial disciplinary hearing.”

Referring to the above, the EAT Judge in this case made it clear that it's not a basic employment right that there should be an investigatory meeting in every case.  

Whilst there is there no hard and fast rule employers should always consider investigatory meetings (first) in situations where there may be grounds to suspect an employee has committed an offence, but there isn't any direct evidence of such, or the evidence is weak.