Mar 27, 2024 | News

Investigations into alleged gross misconduct should be conducted reasonably. Reasonableness includes not accepting vague or generic allegations, questioning further to get the specifics of the situation, provide employees with the opportunity to put their case, ensure all material evidence is available and listen carefully.

The law on unfair dismissal is found in section 98 Employment Rights Act 1996. Under this section, the dismissal must be for a fair reason (one of which is conduct). The dismissal must also be conducted in a reasonable manner, dependent on the size and resources of the organisation. Some of our clients investigate internally and others decide to use independent experienced HR Consultant to undertake the investigation. Skilled and knowledgeable HR professionals can always be a good sounding board to ensure an efficient robust investigation.  Failure to ensure a fair and proper process could render the dismissal unfair.

British Home Stores Limited v Burchell [1978] set out a now well-known test to be applied when determining if the dismissal was conducted in a reasonable way.

  • Did the respondent have a genuine belief in the misconduct of the claimant at the time of the dismissal?
  • Was that belief based upon reasonable grounds?
  • Did the dismissal follow a reasonable investigation and a reasonable procedure?

The “Burchell test” is used by an Employment Tribunal (ET) to come to a decision on what a hypothetical reasonable employer would conclude in the same circumstances, and therefore if the decision to dismiss was fair and reasonable.

It is important to note however that the “Burchell test” does not impose on employers the need to conduct an investigation on a par with an investigation by the police, for example to confront and cross examine witnesses and beyond reasonable doubt threshold, as required to affirm a conviction.

Employers should also consider any mitigating circumstances around the alleged misconduct. This is an important part of a fair process. These circumstances can include the context in which the allegation happened, or the words that were said, the context and circumstances. They should also take into account the employees disciplinary record and their length of service.

An Employment Tribunal, if a case gets that far, can be critical of the investigation, if the decision to dismiss on grounds of gross misconduct was ‘not formed on reasonable grounds after a reasonable investigation’. This can be due to the failure to ask follow-up questions and if the allegations are vague and generic. That is why we support our clients in writing specific allegations to ensure that they are clear and to consider any decision to dismiss is reasonable. The allegation(s) for gross misconduct, should also align to the Organisation policy and procedure and with cross reference to the Acas guidance on Conducting workplace investigations and discipline at work.

This case serves as a reminder for employers of the importance of a fair and thorough investigation prior to disciplinary and ensure that the detail is included. Especially where gross misconduct is concerned, employers should look into every angle of the case and only progress from the investigation when they have specifics as to what happened and in what context.

If you would like Birch to assist you with a workplace investigation please get in touch!

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