Unreasonable investigations – a follow up

The way an employer deals with the investigation into allegations of gross misconduct and what amounts to unreasonable behaviour by the employer during the investigation process, has been the subject of further consideration, this time from the Employment Appeal Tribunal in the recent case of Retirement Security Ltd v Miss A Wilson

In the above case, it was confirmed that the way in which an investigatory process is conducted by an employer, can lead to a finding of constructive unfair dismissal against them, if they behave in a way which fundamentally damages the relationship of trust and confidence with the employee.

The background

The Claimant, Miss Wilson, had been working for the employer, Retirement Security Ltd, for 3 years in the role of Registered Manager. She was in charge of managing one of their retirement ‘courts’ (a 42-apartment property).

In January 2018, the Claimant’s Services Manager, was made aware of concerns about her, expressed by four of the five duty managers, three of whom then made formal complaints. She was almost immediately suspended from her role, pending investigation into the allegations.

The invitation to the investigation, which was sent to the wrong address which delayed receipt, gave headings of concerns, which were serious in nature, but did not give detail of the specific allegations. Examples included;

• owner safety
• illegal deprivation of liberty
• confidentiality
• alleged theft
• not following internal accounting procedures – petty cash
• neglect
• concerns from directors
• not following direct instructions
• improper leadership.

The Claimant described that the 2-hour investigatory meeting left her feeling like she was ‘under police investigation’. At the end of the meeting, she was told a report would be sent to her legal advisers and it appears it was intimated to her that this would give her 24 hours to consider if she wanted to resign, with a reference.

Miss Wilson believed that her employer had already concluded that she was guilty of gross misconduct, having made serious allegations at the meeting but shown her limited information to justify the concerns. She felt her employer had no confidence in her ability and had not given her fair opportunity to answer the allegations. In the meeting she accepted she had made some mistakes that she could learn from but did not believe the employer wanted her to continue in her employment. She said she had not knowingly put anyone at risk and did not consider the investigation had been handled fairly. Given the lack of a fair procedure in dealing with her to that point, she considered she would face an unjustified dismissal in the circumstances, and so felt that if she was to continue working in the sector her only option was to resign. She resigned the morning after the meeting.

What was wrong with the investigation process?

A list of serious allegations were provided to the Claimant in the invitation letter to the investigation meeting, but little evidence was given to substantiate it, and even though the employer had said that full details of the evidence would be given in the investigatory meeting, they were not.

The Respondent was criticised by the Employment Appeal Tribunal (EAT) for not providing statements and important pieces of evidence that they had access to and had referred to. The EAT felt they could have provided redacted witness statements. The Claimant had only been given 24 hours to prepare before the investigation meeting.

The EAT concluded that:

“although the way in which an investigatory meeting (or, more generally, an investigation process) is to be conducted will depend on the particular circumstances of the case, if, without reasonable and proper cause, the employer thereby acts in a manner likely to destroy or seriously damage the relationship of confidence and trust, it would be a fundamental breach of contract. That is what the Employment Tribunal found had happened here.”

Conclusion

Employers need to be careful that during an investigation process, the employee is not treated in a manner which could destroy the trust and confidence between employer and employee. Even if the employer feels that the initial evidence in the investigation points towards gross misconduct, they should treat the employee in a dignified way, and be prepared to listen to their response to allegations. Employers should not unreasonably withhold evidence that is in their possession and upon which they wish to base serious allegations.