Is a dismissal unfair if the employer changes an investigation report following advice from an in-house lawyer?
Not in this case, said the Employment Appeal Tribunal in Dronsfield v The University of Reading. The employee was a professor who had a sexual relationship with a student. University rules said he could only be dismissed for immoral, scandalous or disgraceful conduct. The University investigated the allegations and produced a report. An in-house lawyer suggested some changes to the report, including the deletion of parts which were favourable to the employee.
The employee was dismissed. He brought an unfair dismissal claim which he lost. The employment tribunal said it was fair for the employer to have their lawyers advise the investigative team. The lawyer's advice had been to limit the report's conclusions to whether there was a case to answer and remove 'evaluative opinions' about the employee's conduct. The lawyer said those judgements should be left to the disciplinary panel. The employee appealed.
The EAT upheld his dismissal. The employer was entitled to act on the advice of their solicitor. The changes to the report were considered at the internal appeal stage. The appeals officer had considered the two reports and concluded that no pressure had been put on the investigators to change the report and the changes were not made to make the employee's dismissal more likely. The dismissal was fair.
Although the dismissal was fair in this case, the investigators tripped up initially by making evaluative judgements about the employee's conduct rather than sticking to their job: fact finding and making a recommendation about whether further action (such as a disciplinary hearing) is required. The ACAS guide to conducting workplace investigations might be helpful to anyone conducting an investigation. Find it at https://m.acas.org.uk/media/4483/Conducting-workplace-investigations/pdf/Conducting_Workplace_Investigations.pdf
