Disciplinaries and dismissals – employers must inform employees of allegations before investigation

This recent news article from the Courier covered a recent claim for unfair dismissal by former employees of a sub-contractor of GlaxoSmithKline. We’ll take a look at the facts of this case and then examine what employers must do to ensure that they conduct an investigation fairly – particularly relating to the obligation to inform employees of the allegations against them.

The facts of the case

The three ex-employees (“the Claimants”) were employed by a subcontractor at the GlaxoSmithKline site in Montrose, Scotland. Their employer, Kitsons Environmental Europe Ltd, a specialist asbestos removal and thermal insulation company, had its services subcontracted to it by Dasoon Bacock, the contractor in this instance. The Claimants were employed to maintain the site during the week and on an ad-hoc basis not relating to maintenance at the weekend. The men operated on a “job and knock” approach – they would leave the site when the job they were asked to do had finished.

In February 2011 security staff became concerned about the frequency with which the Claimants were entering and exiting the site. They informed the operations manager (Mr Livingstone) of this and he discovered that the Claimants has submitted incorrect hours on their timesheets. This resulted in the Claimants being called for an investigation, being subjected to the disciplinary process and dismissed.

How the investigation and disciplinary went wrong

The Employment Tribunal pointed out a number of problems with the investigation and disciplinary process, namely:

1. Mr Livingstone was not a sufficiently impartial person to supervise the investigatory and disciplinary processes and had attempted to “dredge up” evidence on the Claimants
2. The Claimants had not been informed of the allegations being made against them prior to the investigatory hearing
3. Mr Livingstone had come to a pre-conceived decision to dismiss the Claimants prior to the disciplinary hearing
4. The investigation and disciplinary process was conducted with “undue haste” within 5 days

As well as pointing out these defects, the Employment Tribunal went on to state that there had also been procedural failings – including the failure to take into account such mitigating circumstances as the “knock and job” approach was common and accepted on the site and that no other employees had been disciplined or dismissed as a result of the practice.

How to conduct an investigation fairly

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1. The employer must conduct a reasonable investigation

The ACAS Code emphasizes the importance of an investigation to establish the facts in the matter – as well as a slew of common law. An employer cannot be said to have acted reasonably if they reach their conclusion “in consequence of ignoring the matters which he ought reasonably to have known and which would have shown that the reason was insufficient” (W Devis & Sons Ltd v Atkins [1977] IRLR 314)

2. The employer must inform the employee of the problem

Under the ACAS Code one of the most basic elements of fairness is informing the employee of the allegations against them and giving them an opportunity to put their case. The employer should inform the employee of the issues prior to the investigation hearing (if there was one) or, alternatively, before the disciplinary hearing if there is no investigatory hearing.