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Is an investigation hearing needed to ensure dismissal is fair?
This month saw the publication of an interesting judgement by the Employment Appeal Tribunal following an appeal which was held in October. The EAT considered whether a separate investigation hearing is required to avoid a claim of unfair dismissal.
In the case of Sunshine Hotel v Goddard, a lower tier tribunal had ruled in autumn 2018 that Sunshine Hotel's dismissal of Mr Goddard over a conduct matter had been unfair. However, Sunshine Hotel Ltd (t/a Palm Court Hotel) appealed, claiming that the lower tier tribunal had been erroneous in its findings because its decision had been based on the fact that the employer had failed to hold a separate investigatory meeting.
The EAT judgment quotes the ACAS code, paragraph 5, which deals with establishing the facts of each case and states: "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 ACAS code makes it clear that an investigatory meeting, prior to a disciplinary meeting, is not a requirement.
However, the EAT still upheld the original tribunal decision of unfair dismissal because it identified that a proper investigation had not been carried out and the dismissal had been based on "two people at the Respondent sitting down to view the CCTV in the absence of the Claimant."
By drawing attention to the ACAS code, the EAT clarifies that employers are not expected to hold a separate investigation meeting, as long as the employee is made fully aware of the allegations they face in advance of the meeting. In this case, it appears that the Claimant was not made aware in advance and did not have time to prepare.
Employers should also note that if company policy states that an employee has the right to a separate investigation meeting, it would be advisable to hold one. As well as being aware of this judgement and the ACAS code, employers should therefore check their own employment policy and ensure they abide by it.
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