Investigations are the foundation of a fair dismissal
procedure. One recent example of a flawed investigation going
under the Tribunal's microscope is Industrial
and Municipal Projects Ltd v Boyle.
In that case, serious flaws in an employer's investigation
resulted in an unfair dismissal. The employer's investigation
went wrong because:
• The remit to Investigating Officer lacked focus and the
employer admitted it was "emotionally charged" and an "over the top
reaction to what had happened that week".
• The Investigating Officer's actions disclosed that he was
taking an unbalanced approach: when explaining the reason for the
meeting, it was clear that the Investigating Officer was looking
for evidence of the accused employee's guilt, and not whether or
not that employee was guilty.
• Key witnesses, including the accused employee, were not
interviewed - this was labelled "a grave deficiency" by the
Tribunal and was criticised as showing that the investigation was
focused on establishing the Claimant's guilt.
• These and other flaws in the investigation were not
corrected by further investigations of the Disciplining Officer
which were conducted by telephone during a 35 minute adjournment of
the disciplinary hearing.
The EAT specifically stated: "Had the Disciplinary Officer stood
back and looked at the whole investigation, it ought to have been
clear ... that the deficiencies, as identified by the Tribunal,
were such that she could not reasonably rely on the
investigation." It was held that the employer failed to carry
out as much investigation as was reasonable in the circumstances
and the dismissal was unfair.
Sometimes, it is possible to cure mistakes made by the
Investigating Officer at the disciplinary or appeal stages.
But in Boyle, the Disciplinary Officer
did not start over with a new investigation and the dismissed
employee did not appeal because he had no confidence, after the
investigation, that any appeal would be considered
properly.
This case is a salutary reminder that failing to conduct proper
investigations can result in significant liabilities.