Background
In this case, the Claimant, Mr Lamb, was an electrically trained engineering supervisor at Teva UK Ltd (the Respondent) and had been employed since May 2011.
On 21 June 2022, the Claimant was made aware that there was a problem with a forklift charger and, on 12 July 2022, works were undertaken to install new chargers. The Claimant then signed a permit to confirm that the area was safe, clean and tidy.
Despite this, on 17 July 2022, one of the Respondent’s warehouse employees suffered a potentially fatal electric shock while attempting to use a forklift charger caused by an electrical fault. This incident arose because the previously reported fault was not remedied.
Following the incident, the Claimant told the Respondent’s senior warehouse manager that he was not aware of the fault. However, the Claimant later sent an email to the senior warehouse manager and technical manager seeking to blame the incident on a recently appointed junior technical colleague who was not electrically trained after witness evidence emerged confirming that the junior colleague made the Claimant aware of the fault.
The Claimant was dismissed for gross misconduct and subsequently brought an Employment Tribunal (ET) claim for unfair dismissal.
Key procedural issues
1. The Respondent’s technical manager was appointed to carry out an investigation into the incident, but also provided a witness statement as part of the investigation.
2. The Respondent appointed its senior warehouse manager as the note taker during the investigation. The senior warehouse manager had been involved with the events and also provided a witness statement.
3. A report summarising key CCTV evidence, which was said to increase the seriousness of the allegations against the Claimant, was provided to the Claimant less than 24 hours before the disciplinary hearing.
4. It was possible that the Respondent’s supply chain director, technical manager and/or senior warehouse manager had made comments such as “I don’t think he [the Claimant] is going to be back at the business” or he (meaning the Claimant) “is done at the business” prior to the Claimant’s disciplinary hearing.
Initial ET decision
The ET rejected the Claimant’s unfair dismissal claim. The ET found that the investigation and disciplinary process, although not perfect, was, overall, reasonable because:
- The Claimant was given the bulk of the evidence well in advance of the disciplinary hearing
- The Claimant had adequate time to prepare for the hearing and never sought a postponement
- The Respondent’s investigation was thorough and addressed all relevant lines of enquiry
- The Respondent’s letter inviting the Claimant to a disciplinary hearing set out all of the allegations clearly
- The procedural issues were minor enough not to render the overall process unfair
The Claimant’s appeal
The Claimant appealed to the Employment Appeal Tribunal (EAT) stating that the ET’s decision was perverse on the following grounds:
- The technical manager had dual involvement in the investigation (as a witness and the person carrying out the investigation)
- The senior warehouse manager had dual involvement in the investigation (as a witness and note taker)
- Evidence that materially increased the seriousness of the allegations was received less than 24 hours before the disciplinary hearing
- The ET accepted a comment along the lines of “I don’t think the Claimant is going to be back at the business” or “he is done at the business” had been made by the technical manager (the investigator), the senior warehouse manager (the note taker) or the supply chain director before the Claimant’s disciplinary hearing.
Employment Appeal Tribunal’s (EAT) findings
The EAT upheld the ET’s decision, taking the following factors into account:
- Investigator also being a witness: The technical manager’s involvement with the events was limited. The Claimant did not expressly challenge the technical manager’s evidence at the disciplinary hearing nor his prior involvement in the matter, despite knowing that he was a witness upon receiving the evidence prior to the hearing. The technical manager was not responsible for deciding whether or not the Claimant should be dismissed and only provided a relatively small part of the evidence in the case.
- Note taker having prior involvement and being a witness: The senior warehouse manager had a much less significant role in the investigation and, although she did go beyond her role of note taking, by asking the Claimant some questions during the investigation meeting, she was not in charge of the investigation.
- Late evidence: The Claimant did not object to the late evidence. The new evidence was relevant to and consistent with the allegations already put to the Claimant.
- Alleged comments: The comments, while perhaps unwise, were not made by the person conducting the disciplinary hearing who was the overall decision maker; were simply reflective of the seriousness of the allegations and there was no evidence of undue influence on the decision maker.
Key Points for employers
Employers should always strive to follow the ACAS Code to avoid procedural unfairness.
However, this case highlights that the law only requires employers to conduct reasonable investigations – they do not have to be perfect. It is clear from this case that the ET looks at fairness overall rather than focusing on isolated procedural missteps.
Employers should focus their efforts on ensuring that the key elements of the ACAS Code are followed. When assessing the fairness of the procedure itself in this case, the ET and EAT recognised that the employer had done this. By way of example, the Respondent clearly set out the allegations against the employee and had conducted a thorough investigation following all of the relevant lines of enquiry.
As a starting point, employers should try to avoid dual roles in disciplinary procedures but, where it cannot be avoided, employers should be transparent and take steps to ensure impartiality is maintained.
Evidence should be provided to employees in good time to allow them to adequately prepare their case. However, if new evidence emerges, employers need to consider whether the evidence is consistent with the allegations.
Whilst there is no absolute rule against a person who has had prior involvement in a matter carrying out an investigation, employers must avoid appointing a decision maker who has had prior involvement in disciplinary matters.
This decision also shows that off-the-cuff comments are unlikely to taint the overall fairness of the process so long as the decision maker is not influenced. Of course, the making of such comments should be avoided in the first instance, but this decision illustrates a pragmaticism that casual remarks will not automatically equate to an unfair dismissal in circumstances where it can be shown that the decision maker acted independently and was not unduly influenced.
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Chloe Hickling is an Associate in our expert Employment Law team.
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If this article relates to a specific case/cases, please note that the facts of this case/cases are correct at the time of writing.