To hold or not to hold an investigatory meeting in misconduct cases?

Sunshine Hotel t/a Palm Court Hotel v Goddard UKEAT/0154/19

Why care

It is often the seemingly straightforward aspects of employment law which catch organisations out. Take investigations into potential misconduct for example. Decisions about what level of detail to go into when carrying out an investigation, or how much evidence to provide to the employee in advance about their alleged misconduct, can make the difference between a fair and an unfair dismissal.

The Employment Rights Act 1996 gives the employer considerable latitude in this regard in that there is a requirement for the employer to act reasonably in all the circumstances. The Acas Code provides that the employer should carry out a proper investigation but is not prescriptive about what form this should take. Employers might be forgiven for wondering how and when to present the results of their investigation to an employee.

The case

In Sunshine v Goddard the EAT had to consider whether it is a fundamental aspect of fairness for a separate investigatory meeting with the employee to take place. The EAT concluded that there is no legal requirement for a separate meeting. The key aspects to fairness are that the employer has carried out a proper investigation and the employee has had a chance to know the allegations they are required to respond to. In this particular case the employee was in fact dismissed unfairly. He was made aware, in a letter before the disciplinary hearing, that he was being accused of sleeping whilst on duty but the results of the investigation were not shared with him. For example, CCTV footage of him being asleep on duty was watched by two company employees in his absence.

What to take away

Of course some organisations may provide in a disciplinary policy that the employee can expect to be invited to an investigatory meeting at which preliminary findings will be shared. If this is the case, then this should be adhered to as failure to follow an internal policy (even where non-contractual) may affect fairness. The EAT commented that: "It is not enough that the employee is told, simply that a particular act of misconduct is alleged. Enough of the basis of the allegation has to be conveyed to the employee for the employee to be able to prepare to meet the allegation effectively at the disciplinary meeting. The Employment Tribunal was entitled to find that this did not happen here."

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