What is the role of an investigator?
23 November 2019
It has long been established that the correct way for an employer to deal with allegations of misconduct against an employee is for there to be an investigation into the alleged misconduct, and then, if appropriate, a disciplinary hearing to decide whether the employee is guilty of the alleged misconduct, and if so, what sanction to impose. If a sanction is imposed, then the employee should be given the right of appeal. In order for the process to be fair, then wherever possible and where the employer’s resources allow, different people should carry out the investigation, the disciplinary hearing and the appeal.
One question which comes up frequently is to what extent should the investigation decide whether the employee is guilty or not? This was something which was considered by the Employment Appeal Tribunal (EAT) in the recent case of Dronsfield v University of Reading.
In this case, an academic (Dronsfield) had a sexual relationship with an adult student. The University did not prohibit such relationships, but did have a policy that academics in those types of relationship must tell their head of department, as otherwise there might be real or perceived favouritism or disadvantage to the student. In this case a complaint was made to the University by the student’s ex-boyfriend.
An investigation was started into the following allegations: (a) having a sexual relationship with a student without reporting it, creating a potential conflict of interest; (b) abusing a position of power to influence a vulnerable student to enter into a personal relationship; (c) acting in breach of duty of care responsibilities towards students; and (d) holding late-night meetings with female students involving alcohol.
The academic accepted that he had had sex with the student, but claimed that there was no ongoing relationship and hence nothing to report. He also maintained that the initial approaches had been instigated by the student rather than by him. He had not reported the matter because he said he had previously raised complaints about his colleagues, including an allegation of bullying by his line manager, and was unhappy with how the University had responded to these. As a result, he claimed that he had no faith in the University. He accepted that he had been involved with the supervision of the student, and had marked her dissertation, (the grade he awarded was similar to the grade reached by two co-markers). His account was accepted as accurate, and the student was not interviewed.
At issue was the investigation report. As is common with an investigation report, it went through a series of drafts. It was also reviewed by the University’s in-house solicitor. One striking difference between the penultimate and final drafts was that the earlier draft contained a statement by the investigator to say that ‘there is no evidence to suggest that the conduct of Dronsfield constituted conduct of an immoral, scandalous or disgraceful nature’, wording which came from the University’s disciplinary policy. This wording had been removed in the final version.
The investigation found that he had a consensual sexual relationship with an adult student and that he was in breach of the university’s policy by not reporting this. The penultimate report noted that the fact that he had a ‘dysfunctional relationship’ with his line manager did not absolve him of this responsibility. Mr Dronsfield was summarily dismissed for gross misconduct.
Mr Dronsfield brought a claim in the Employment Tribunal claiming that his dismissal was unfair. Amongst other things, he argued that the removal of the wording in the investigation report showed that the investigation was flawed. The Tribunal did not agree, and although he appealed to the EAT, the appeal also failed. However, what the case illustrates is that as part of the Tribunal disclosure process previous versions of documents are disclosable, and whilst on the facts of this particular case the change in approach did not render the dismissal unfair, in slightly different circumstances it may well do so. The case also illustrates the trap that so many investigations fall into – reaching conclusions, which, as stated above, should not be their role. The investigation should be about whether there is sufficient evidence for the allegations to be dealt with under the disciplinary procedure, not whether the allegations may constitute gross misconduct.
How we can help
Carrying out a disciplinary investigation can be time consuming and difficult. Each case is different, but there may well be witnesses to interview, documents to review, CCTV to view etc. Many employers understandably do not have the resources to manage a complex investigation. We have carried out independent investigations for a number of employers, and then made recommendations to them whether to take matters further and conduct a disciplinary process. If you would like to know more about this service, please visit our Investigations, Hearings and Appeals page, or contact us.
If you need help with an investigation, or would like advice on a situation you are dealing with, please call us on 01243 836840 for a no obligation chat, or email us at [email protected].