Unfair dismissal and investigations

Sunshine Hotel Ltd v Goddard

A separate investigatory hearing and disciplinary hearing is not required in every case by right.

Background

Mr Goddard was suspected of sleeping on duty. In the letter inviting him to an investigation meeting the employer stated that if there was any substance to the allegation, there would be a disciplinary hearing. In fact, the investigation meeting turned out to be the disciplinary hearing. Mr Goddard was dismissed. A tribunal upheld his unfair dismissal claim. The employer appealed, arguing that the tribunal had suggested that a separate investigatory hearing and disciplinary hearing is required in every case by right.

EAT decision

The appeal was dismissed. On the facts, there had been a lack of proper investigation and Mr Goddard hadn’t been given the opportunity to prepare for the disciplinary hearing which made it procedurally unfair.

As regard the investigatory and disciplinary stages, the EAT pointed out that the ACAS code states (at para. 5) that ‘it is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases, this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing’.

The EAT said that neither the ACAS code, case law or s. 98(4) of the Employment Rights Act 1996 require there to be an investigation hearing in every case, distinct from a disciplinary hearing. The statute simply requires an employer to act ‘reasonably’. Provided an employee knows the full details of any allegations, a failure to hold two separate meetings will not usually render a dismissal unfair.

Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2019/0154_19_1510.html

Comment

This case supports a long-held view that it is not necessary in every circumstance to hold an investigatory meeting first before inviting an employee to a disciplinary hearing. This is, however, very case and fact specific.

It is our advice, in all circumstances, to check to see if the company disciplinary policy, employment contract or collective agreement states that there will be an investigatory meeting before a disciplinary hearing. If there is a contractual right to such an investigatory meeting, a failure to adhere to this will be a breach of contract (which can have implications for restrictive covenants and other contractual rights) and could potentially lead to an unfair dismissal.

See also our guide to Handling Misconduct.