The Women and Equalities Select Committee reported earlier this year that sexual harassment in the workplace is “widespread and commonplace”. It recommended that the government... Read more
Government Publishes LGBT Action Plan In July 2017, the government launched a national survey of LGBT people. It received more than 108,000 responses which have... Read more
An investigation is a fact-finding mission. No more and no less. The purpose is to find out on the balance of probabilities whether there is a case to answer. It is not an exercise to find out whether an employee is guilty or not. Workplace investigations can be carried out in a variety of situations, and not just in disciplinary action. Investigations happen for example where there are;
You continue to have employment rights during the investigation. The ACAS Code of Practice on Disciplinary and Grievance Procedures applies to any matters relating to discipline. Your employer has a legal duty to act reasonably and use a fair procedure. The ACAS Guide gives directions on what it is to act reasonably and fairly, and the duties are further developed by the Courts and Tribunals in case law.
The duty to act reasonably is also known as the band of reasonable responses. It is a legal duty laid out in Section 98 (4) (a) and (b) Employment Rights Act 1996. S.98 (4) (b) says that the duty to be reasonable should be decided in accordance with equity and the substantial merits of the case. Equity here means natural justice, procedural fairness, an employee’s personal circumstances, common sense and common fairness. Substantial merits here means “whether an employee’s behaviour or performance warranted dismissal”.
The Burchell Test
The duty to act reasonably was explained in the case of British Home Stores v Burchell (1978). Where there is a dismissal, the court said that an employer must prove that at the time of the dismissal
The Balance of Probabilities
This means that it is up to your employer to prove that you have a case to answer. This task of proving or disproving is commonly described as “the burden of proof”. The Burden of proof is decided on “the balance of probabilities” The balance of probabilities means that something is more likely than not to have occurred, or it is more likely than not that the incident did not occur. If the probabilities are equally balanced then your employer has not satisfied the burden of proof.
The Employment Tribunal will not consider whether you were actually guilty of the misconduct, but whether your employer believed and had reasonable grounds for believing that you were guilty of the misconduct at the time the decision was made. The only way that your employer can prove that they believed and had reasonable grounds for this belief is by proving that they acted within S98(4) ERA 1996.
A fair procedure is determined by reference to rules of natural justice and the following;
The famous case of Polkey v. A. E. Dayton Services Ltd  is sometimes called the “no difference” rule. In this case the House of Lords said that an employer’s failure to follow a proper procedure (including investigation) is almost guaranteed to make any dismissal unfair. The Employment Tribunal may reduce the level of compensation if a fair procedure would still have led to a dismissal (The Polkey Reduction).
This means that even if the employer was reasonable under S98 (4) ERA 1996, but breached the duty to follow a fair procedure, then the dismissal will be unfair.
The Polkey Reduction
If your employer was reasonable under S98 (4) ERA 1996 but did not use a fair procedure, the Employment Tribunal will reduce your compensation because you would have been dismissed if fair procedures had been followed.
In every investigation the Band of Reasonable Responses (Burchell Test) AND a Fair Procedure must be applied. If they are BOTH not present, a dismissal will be unfair.
An employer who has failed to conduct a proper investigation into an employee’s misconduct was not able to successfully argue in subsequent unfair dismissal proceedings that the outcome (dismissal) would have been the same even if the investigation had been properly conducted. In A v B , The Employment Appeal Tribunal said that the employer’s investigation into an employee’s alleged misconduct was not reasonable in all the circumstances and, accordingly, his dismissal was unfair. It was no answer to the defects in the investigation to say that even if it had been reasonable, the decision to dismiss would still have been taken.
Natural justice is legal language for two ancient rules from the Romans who believed that some legal principles were self-evident and did not require a statutory basis. It has been replaced and extended by the general “duty to act fairly”. There are two pillars of natural justice. The rule against bias is known as “nemo iudex in causa sua”. It means that no person can judge a case in which they have an interest. “Audi alteram partem” means “hear the other side too”. It is most often used to refer to the principle that no person should be judged without a fair hearing in which each party is given the opportunity to respond to the evidence against them. The principles of natural justice represent the basic requirements of fair procedure. The minimum requirements are:
The ACAS Code describes the 3 main elements of the principles of natural justice in a disciplinary situation.
Hearings – audi alteram partem
Bias – nemo iudex in causa sua
This resource is published by Employee Rescue Limited. Please note that the information and any commentary on the law contained herein is provided for information purposes only. The information and commentary does not, and is not intended to, amount to legal advice. Employee Rescue accepts no responsibility for any loss occasioned to any person acting or refraining from action as a result of the material contained in this publication.
Further specialist advice should be taken before relying on the contents of this publication. You can send an e-mail to firstname.lastname@example.org for such specialist advice if required.