There exists in an employment contract an implied obligation to not act in a manner likely to destroy or seriously damage the relationship of confidence and trust without reasonable and proper cause. This relationship can become imperilled when an allegation has been made against an employee and this needs to be investigated.
In a recent case – Retirement Security Ltd v Miss A Wilson (UKEAT/0019/19) – the employer made a series of errors that resulted in a successful case of unfair constructive dismal against them. There were three formal complaints made against an employee who was a manager at the time. The complaints were from staff who reported to them. After suspending the employee, an investigatory interview was arranged but due to the letter about the interview being sent to the wrong address, the employee had less than 24 hours to prepare. The employee was to have been supported by their manager but due to this same manager being appointed to the disciplinary panel, he absented himself from the being their support due to the conflict of interest. No documentation was given to the employee in advance of the meeting. The employee claimed that the employer had no trust or confidence in them and so they resigned and brought a claim of unfair constructive dismissal.
The employment tribunal found that the process followed was flawed and fundamentally unfair. The employer appealed on the grounds that the employment tribunal should not have transferred the ACAS code of practice that governs a disciplinary hearing, onto an investigatory interview. The employment appeal tribunal dismissed this appeal as the investigatory step was a part of the formal process and the errors made did indeed breach the implied term of trust and confidence. It did not help the employers case that even at the appeal stage, they did not provide any evidence to support the overall fairness of the dismissal.
How to avoid these types of mistakes
The best way to ensure that the investigation is conducted properly and does not amount to being unreasonable is to use a trained and independent professional. It is also wise to have your disciplinary and grievance policies and procedures reviewed to ensure that the written process is sound, complies with the ACAS code of practice and will not give rise to a claim of procedural fault because they are flawed.
The investigation must be well planned and have a clear, written objective. It should be conducted to establish the facts of a case and not to try and place blame, prove culpability or endeavour to catch an employee out. It must also be conducted by someone who is not involved in the matter at hand and who will preferably not be part of any hearing or subsequent appeal.
Conducting an investigation can also be time consuming and stressful when done internally. The investigator may feel pressured to sway things in a certain way or may otherwise be subject to influence from others in the workplace such as friends or colleagues.