Adequacy of investigation and appeal procedure

Sattar v Citibank NA

In upholding a tribunal’s decision to dismiss all an employee’s claims, the Court of Appeal provide useful guidance on fair conduct procedures and rescuing appeals.

Background

Mr Sattar was a senior bank employee. He was also disabled; he had a frontal lobe tumour which may have impacted his memory and concentration. Following an HMRC approach to the bank, he was suspended. He wasn’t told who’d be conducting the investigation and was simply sent a copy of the staff handbook and referred to the disciplinary procedure. In the letter inviting him to a formal hearing, nine transactions of concern to the bank were itemised. The day before the hearing the bank became aware of Mr Sattar’s disability. The hearing was postponed by 10 days and the bank suggested Mr Sattar speak to OH regarding reasonable adjustments. Mr Sattar declined to do so. The bank modified its process by dispensing with the need for an OH report, limiting the number of transactions under investigation to three and conducting the disciplinary process in writing. Mr Sattar’s written submissions were considered by the dismissing officer who was satisfied he didn’t need to ask further questions. Mr Sattar was summarily dismissed for gross misconduct - improper use of the bank transfer system in making payments to and through a charity of which he was the sole trustee. He appealed and was allowed to submit further evidence and make further submissions. He did not appear in person at the appeal.

Mr Sattar brought claims of unfair dismissal and disability discrimination. A tribunal, upheld by the EAT, dismissed his claims: the investigatory procedure, taken in the round, was reasonable. He took his case to the Court of Appeal.

Court of Appeal decision

The appeal was dismissed.

Mr Sattar complained that the decision to take disciplinary action had been taken before the completion of an investigation. The Court of Appeal said that continuing an investigation after making a decision to discipline an employee was not a flaw in the process and did not make the decision unreasonable – as long as the employee had a full and fair opportunity to engage with any new material. The absence of a formal hearing at the early investigatory stage would only be unfair if its purpose was to reinforce a provisional case against the employee and it failed to pursue evidence potentially supporting his case. Here Mr Sattar knew, albeit in general terms, that his transactions were of concern to the bank and, in the absence of a ready explanation from him, there clearly was a case to answer. The reference in the seminal Burchell case to investigation includes the disciplinary hearing and appeal. What matters is the opportunity to answer any allegations, not when.

Mr Sattar also complained that the charges against him were unclear and that this vitiated the process. Not so said the Court of Appeal. Charges need to be put so that on a fair and common-sense reading, the employee knew what charges needed to be addressed. The burden is on the employer – it’s not good enough if the employee has to speculate. A reasonable employee reading the disciplinary letter sent to Mr Sattar could not have failed to appreciate that the matters described fell within the generic description of improper use of the bank’s systems. One of the bank’s findings was based on a charge that hadn’t been clearly articulated – but that did not invalidate the overall conclusion of gross misconduct. If it’s clear in the hearing and decision letter what the charges were, then an appeal may come to the rescue.

As regards an appeal, whilst it’s clear that an appeal can rescue a defective process (whether by way of rehearing or review), the Court of Appeal stressed that such a rescuing appeal needs at least to enable fresh evidence and further submissions to be advanced.

Comment

This is helpful guidance from the Court of Appeal. There is often confusion about the role of the investigation and employees will often think that they are entitled to know everything in order to be able to answer the questions put to them. However, an investigation is designed to try and understand if there is a prima facie case and although the employer must always look for evidence that both exonerates as well as implicates an employee, a failure to provide all the evidence and articulate the allegations at that stage are not fatal to the fairness of the process.