The European Parliament has formally approved the text of a new whistleblowing...
Withholding evidence from disciplinary hearings
Hargreaves v Manchester Grammar
There was no unfairness when an employer withheld certain evidence from a disciplinary hearing that ultimately led to an employee’s dismissal.
Mr Hargreaves was a teacher with an unblemished record of over 10 years’ service until he was accused of grabbing a pupil, shoving him against the wall, and then pushing two fingers against his throat. Mr Hargreaves was suspended and invited to an investigation meeting, during which he denied the allegation of misconduct. An investigation report was prepared identifying two different views of the incident: either that there had been a malicious allegation of physical abuse levelled against him or he had acted in a way that could be viewed as serious professional misconduct. The matter progressed to a disciplinary hearing.
At the hearing Mr Hargreaves accepted he had read all the statements and had every opportunity to ask for further evidence to be obtained. As a result of certain points made by Mr Hargreaves during the hearing, further investigations were carried out. However, they did not corroborate Mr Hargreaves’ suggestion that there had been any dishonesty on the part of the pupils. There was nothing discovered that would cast any doubt on their credibility. On the balance of probabilities, the school found the allegations to be proven and Mr Hargreaves was dismissed. He appealed unsuccessfully against his dismissal. An employment tribunal found his dismissal was fair and Mr Hargreaves appealed to the EAT, arguing that the school’s investigation was inadequate given the significance of the allegations he faced. He also pointed out that the school had failed to provide certain evidence to the disciplinary hearing from potential witnesses who had said they had seen nothing.
The EAT dismissed the appeal.
The tribunal had correctly directed itself as to the higher standard of investigation that should have been carried out, given the very serious nature of the allegation. Additionally, it was within the band of reasonable responses for the school to decide not to put forward to Mr Hargreaves and the disciplinary panel details about interviews with those who had seen nothing. The EAT did not consider that just because a particular witness had seen nothing, that nothing had happened. The tribunal correctly concluded that the school had reasonably formed the view that the excluded evidence was immaterial and could not assist the disciplinary hearing. On the facts of this case, the dismissal was fair, as was the investigation.
Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2018/0048_18_1106.html
This is a case decided very much on its facts and it is generally not good practice to withhold witness statements. Indeed, it should have been a positive point for the school to show that their investigation was bigger and more thorough, especially given the seriousness of the allegations. Although the new statements added nothing to the matters to be considered, by not disclosing them it made it look as if the school did have something to hide and hence this appeal. On the facts, the tribunal concluded that this had not affected the fairness but it is easy to see this going the other way in other cases.
See also our guide to Handling Misconduct [https://www.crosslandsolicitors.com/site/media/knowledge/handling-misconduct/]