Case law: Employers do not always need a separate investigatory hearing for a dismissal to be fair

Employers considering a dismissal (or other disciplinary action) should assess whether or not holding a separate investigatory hearing is required in order for the procedure to be fair. A recent legal ruling confirms that such a hearing is only required if it would be reasonable to hold one in all the circumstances.

An employer called an employee to an investigative meeting following allegations of sleeping at work. The employer’s letter said that, if there was any substance to the allegations, there would be a disciplinary hearing. In fact the meeting was treated by the employer as the disciplinary hearing, and its outcome was that the employee was dismissed.

The employee claimed unfair dismissal on grounds the failure to hold a separate investigatory meeting made the procedure unfair.

The Employment Tribunal (ET) ruled in the employee’s favour. The employer appealed on grounds that the ET seemed to have reached its decision on the grounds that a failure to hold an investigatory meeting necessarily made the dismissal unfair – such a failure was ‘determinative’. The employer argued that the law only required ‘as much investigation into the matter as was reasonable in all the circumstances of the case’.

The employer’s argument relied on previous legal decisions, and was supported by the relevant Acas code which (under the heading ‘Establish the facts of each case’) says:

“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 Employment Appeal Tribunal confirmed that the employer’s interpretation of the law was correct. However, it found that the ET had correctly identified and applied the law. Taken as a whole, the ET had found that there had not been a reasonable investigation in the circumstances, and the employee had not been given a proper opportunity to prepare for the hearing.

The Appeal Tribunal also noted that there was no express requirement for a disciplinary meeting in the employer’s disciplinary policy – if there had been, the ruling might have been different. Overall, therefore, the dismissal was procedurally unfair.

Operative date

• Now

Recommendation

• Employers considering a dismissal (or other disciplinary proceedings) should consider whether a separate investigatory hearing is necessary first. Provided they act reasonably, failure to hold one is not, of itself, determinative of whether a dismissal is procedurally unfair.

Case ref: Sunshine Hotel Ltd (t/a Palm Court Hotel) v Goddard [2019] UKEAT 0154_19_1510