Clearly you are all familiar with the necessity of having a different person investigating to dealing with the disciplinary hearing and of course a third person dealing with the appeal. This is a core principle of a fair disciplinary process but also when dealing with grievances. It is really important that the person doing the investigation understands what their role is. It might sound obvious, but it is not uncommon for the person doing the investigation to try influencing those who might be hearing the matter.
A recent case involving a gas engineer called Cadent Gas Limited v Singh highlights the problems that can occur. The employee had 29 years’ service and a clean disciplinary record. He was also a Health & Safety representative and a Trade Union shop steward. He had previously raised a number of grievances in relation to allocation of work. The incident that he was dismissed for related to a call out for a gas leak. The company had contractual terms with their customer and could be subject to penalties for when they did not hit KPIs. On the day in question, the engineer had been working on a complex and demanding job, had not eaten anything all day, had less than 2 hours sleep and had stopped on the way to the call out to get food, which is why he arrived one minute outside the allotted time.
He claimed that his dismissal was due to his Trade Union activity. A senior manager who had been the subject of some of the employee’s grievances had driven the investigation. Although he was not the Investigating Officer, he had amended the Terms of Reference given to the Investigating Officer and had given misleading information to HR. He told the employee that the case was a Gross Misconduct issue before the investigation had even concluded. The motivation and knowledge of this senior manager, even though he wasn’t the decision-maker was still attributed to the employer, because of his engagement in and manipulation of the investigatory process. This led to a finding in favour of the employee, despite the fact that the Tribunal found that the managers at the disciplinary and appeal stages did not have any prejudice against the claimant because of his trade union activities.
This shows that it is really important that the investigator be left to their investigation, and that anyone who might be seeking to influence the outcome should be entirely excluded from the process as you are risking tainting the whole thing. Thus, if we know that the employee is likely to say that a particular individual “had it in for them” and it is possible to not have them involved in the process then let’s do that.
The other thing to note about this case is that the employer appears to have leapt on the opportunity to dismiss. We do have to take care not to be harsh or disproportionate to the circumstances. If an employer seems to have acted harshly, it is much easier for the Tribunal to decide that the real reason behind the dismissal must be in this case, the person’s trade union activities, and in other cases someone’s disabilities or being a whistle-blower.