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Consequences of a Flawed Disciplinary Investigation

Posted On: [06/09/2021]

Your employer must be procedurally fair during a disciplinary investigation. The case of Retirement Security Ltd v Miss A. Wilson illustrates the impact of a flawed disciplinary investigation on an unfair dismissal claim. Here, the procedural defects in an investigatory meeting were so bad that the Employment Tribunal concluded that there had been a breach of the implied duty of trust and confidence, which entitled Miss Wilson to resign and claim constructive dismissal. The Employment Appeal Tribunal also agreed.

Miss Wilson worked as a manager of a retirement community in which older people lived independently. Managers who reported to her accused her of potentially serious misconduct and her manager invited her to an investigatory meeting. She was only given 24 hours’ notice of the meeting, not given information about what the meeting was to discuss except a bullet point list containing allegations such as “attempted theft” and her (unrequested) “companion” subsequently took the role of Chair of the meeting. After the meeting, she resigned because she had concluded that the employer had already decided that she was guilty of misconduct without giving her a fair hearing or proper sight of the evidence. The Employment Tribunal upheld her constructive unfair dismissal claim, and Retirement Security Limited appealed to the Employment Appeal Tribunal (EAT).

The EAT agreed with the Employment Tribunal that there had been a breach of the implied duty of trust and confidence and that Miss Wilson had resigned in response. Although the ACAS Code on Disciplinary and Grievance procedures does not require exactly the same standards of procedural fairness and natural justice for disciplinary investigations as it does for formal disciplinary proceedings, that was beside the point. Each case depends on its particular circumstances and also depends on whether the employer has acted without reasonable and proper cause in a manner that is likely to destroy or seriously damage the relationship of trust and confidence. The conduct of the investigation meeting in this case was so flawed that it amounted to such a breach and the employer had not advanced a case that the dismissal was for a potentially fair reason.