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Disciplinary Investigations - Any Lack of Fairness Will Cost You!

Workplace disciplinary investigations require careful handling and employers who fail to act fairly are likely to be hit hard in the pocket. That was certainly so in the case of a property manager who was ambushed at an investigatory meeting and left feeling as if she had been subjected to a police interrogation (Retirement Security Ltd v Wilson).

The manager, who was in charge of a development of 42 retirement homes, was immediately suspended after a number of colleagues lodged complaints against her. The allegations she faced included theft and illegally depriving residents of their liberty. Notice of the meeting was sent to the wrong address, with the result that she had only 24 hours to prepare herself before it was convened.

She was told that the allegations were serious, but they were presented to her in unparticularised, headline form. At the end of the two-hour meeting, she was given 24 hours to consider whether she might wish to resign and receive a reference. She took that course, but subsequently launched Employment Tribunal (ET) proceedings, claiming that she had been constructively unfairly dismissed.

In upholding her claim, the ET found that the conduct of the meeting was so flawed as to destroy or seriously damage the relationship of trust and confidence that should exist between an employer and an employee. She had effectively been ambushed, having been given no fair opportunity to answer what she considered to be half-baked allegations, the details of which were not disclosed to her.

In dismissing the employer's challenge to that decision, the Employment Appeal Tribunal (EAT) rejected arguments that the ET had erred in failing to consider whether there was a potentially fair reason for her dismissal, or whether her dismissal fell within the range of reasonable responses open to the employer. No such case had been argued before the ET and it was not for the ET to construct a potentially fair reason for her dismissal on the employer's behalf.

The procedure followed had been so lacking in fairness that the manager could have reached no other view than that the employer had pre-judged the issues and wanted rid of her. Unless settlement terms were reached in the light of the EAT's ruling, the amount of her compensation would be assessed at a further hearing.

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