The Facts, The Whole Facts and Nothing but The Facts.

It looks like Johnny and Jenny have been doing things that they really shouldn’t have been doing. You have rules about those kind of things and you’re very disappointed with them. 

Or at least you will be very disappointed if a proper investigation confirms your suspicions.  First things first, get Jimmy to investigate their apparent gross misconduct and report back.  If he finds that Johnny and Jenny’s behaviour amounts to “conduct likely to bring the organisation into serious disrepute” (using the language of your disciplinary procedure), then they’re going to be in big trouble and Jerry can probably consider dismissing them following a disciplinary hearing.

But hold on a second, who is the one that decides whether what they’ve done amounts to “conduct likely to bring the organisation into serious disrepute”.  Is it Jimmy who is investigating or Jerry who is chairing the disciplinary hearing?  You’d better check with Jacky, your solicitor, because she knows this kind of stuff.

“Aah” says Jacky.  She’s not a pirate, but does know that this issue cropped up in the recent EAT judgment in Dronsfield v The University of Reading.  In that case, Dr Dronsfield was a professor who had admitted to having a sexual relationship with one of his students.  The first draft of the investigation report made various factual findings, but went on to state that there was no evidence that his conduct had been of an “immoral, scandalous or disgraceful nature” which was the only aspect of potential gross misconduct for which Dr Dronsfield might be dismissed (under the relevant disciplinary rules). 

The University’s in-house lawyer was well aware of the non-statutory Acas guide to conducting workplace investigations.  They knew that the investigator should summarise the factual findings of the investigation and restrict their conclusions to recommendations on whether to take disciplinary action.  The investigator’s own conclusions should be set out in the report, albeit that it’s fine to take advice before reaching those conclusions.  It is also not for the investigator to prejudge the outcome of any disciplinary action.

Therefore the solicitor recommended that the evaluative conclusions (as opposed to factual conclusions) reached by the University’s investigators should be omitted from the final version of the report.  It was for the person chairing any subsequent disciplinary hearing to decide whether the conduct found was of an immoral etc nature – which they did and Dr Dronsfield was dismissed.  The Tribunal and then the EAT found that it had been appropriate for the investigators to limit their findings to the facts and to delete other findings based on legal advice.  The subsequent dismissal was held to be fair.

Based on Jacky’s advice, you instructed Jimmy to confine his conclusions to what Johnny and Jenny had actually done and, if appropriate, recommend whether disciplinary action should be taken against them on the basis that it would then be for Jerry to decide if their actions amounted to “conduct likely to bring the organisation into serious disrepute”.

The contents of this newsletter are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this newsletter. © Mundays LLP

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