Changes to investigation report did not make dismissal unfair

Dronsfield v University of Reading

Changes to an investigator’s report into potential misconduct, made at the suggestion of an in-house lawyer, did not render an employee’s subsequent dismissal unfair

Background

Dr Dronsfield, an academic, was dismissed for gross misconduct following an undisclosed sexual relationship with a student. Under the university’s rules he could only be dismissed if his conduct was of an ‘immoral, scandalous or disgraceful’ nature. Another academic, along with an HR colleague, was appointed to investigate whether such conduct had been established. An early version of the investigation report concluded there was no evidence to sustain the charge against Dr Dronsfield. The later version omitted these comments and evidence from emails obtained through a freedom of information request (as the university is a public body) showed that it was then sent to the university’s in-house employment lawyer and the university waived privilege and confirmed that she had recommended that the investigators should omit this finding and instead leave it to the subsequent disciplinary panel to make evaluative conclusions such as whether Dr Dronsfield’s admitted conduct did in fact amount to gross misconduct. The lawyer’s advice was accepted, and the potentially exonerating finding did not appear in the investigators’ final report. Disciplinary action was taken and Dr Dronsfield was dismissed. He claimed unfair dismissal, in part on the basis that the disciplinary investigation was unfair. A tribunal dismissed his claim and he appealed.

EAT decision

The appeal was dismissed.

The changes suggested by the in-house lawyer were to ensure that the focus of investigation report was on the facts of the case. Drawing conclusions from those facts was the role of the disciplinary panel. No undue pressure had been put on the investigators to change the report nor had any evidence been withheld; they had simply accepted the advice that their report should not set out evaluative conclusions.

Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2019/0255_18_0210.html

Comment

This decision is a useful reminder about what an investigator’s role is – deciding if there’s a case to answer on the basis of the facts – and nothing more. If a lawyers’ (or indeed HR’s) input is so extensive that an investigatory report is no longer the product of the investigating officer, there is a risk that a subsequent dismissal may be found unfair. However here the lawyer’s advice to the investigator stayed on the right side of the line and had not moved into decision-making territory.

Although the advice of a lawyer is covered by legal privilege, disclosure requires that all versions of the report prepared by the investigating officer are provided, which is how the discrepancy in this case first came to light. The university then chose to explain how that discrepancy came about. Even if a lawyer was to investigate the matter initially, their report would be unlikely to be covered by privilege because the lawyer is not giving advice, simply investigating the facts.