Employment law update:

Facts: The employer launched an investigation into the claimant’s expenses and use of hire cars. While preparing his report and decision, the manager conducting the investigation (who lacked experience of such matters) received advice from the employer’s human resources (HR) department, which extended to issues such as the extent of the claimant’s culpability and his credibility.

The first draft report contained some findings favourable to the claimant, and indicated that he was guilty of misconduct rather than gross misconduct. Later drafts became more critical of the claimant, following consultation between the manager and the HR department. The claimant was duly dismissed for gross misconduct, and an employment tribunal held that his dismissal was fair. He appealed. The key issue for the Employment Appeal Tribunal (EAT) was whether the HR department had influenced the investigation improperly.

… employers need to ensure that [investigators] are fully briefed at the outset … Interfering with the investigative process … is fraught with risk.

Decision: Allowing the appeal, the EAT referred to West London Mental Health NHS Trust v Chhabra [2013] UKSC 80, in which the Supreme Court said:

There would generally be no impropriety in a case investigator seeking advice from an employer’s human resources department, for example on questions of procedure. I do not think that it is illegitimate for an employer, through its human resources department or a similar function, to assist a case investigator in the presentation of a report, for example to ensure that all necessary matters have been addressed and achieve clarity. But, in this case ... [the] report was altered in ways which went beyond clarifying its conclusions. The amendment of the draft report by a member of the employer’s management which occurred in this case is not within the agreed procedure. The report had to be the product of the case investigator. It was not (para 37).

The EAT accepted that an investigator is entitled to seek advice from HR, but emphasised that:

… Human Resources must be very careful to limit advice essentially to questions of law and procedure and process and to avoid straying into areas of culpability, let alone advising on what was the appropriate sanction as to appropriate ÿndings of fact in relation to culpability insofar as the advice went beyond addressing issues of consistency. It was not for Human Resources to advise whether the ÿnding should be one of simple misconduct or gross misconduct (para 55).

The employment judge’s finding that the investigator ‘simply reassessed the situation ... was not permissible on the evidence because it does not explain the impact of the advice that went beyond what was permissible, nor does it explain why he changed his position from believing there was no evidence of dishonesty’ (para 55). There was no fresh evidence to justify his change of heart.

Comment: This is a ruling of real practical significance. When appointing investigators, employers need to ensure that they are fully briefed at the outset, and that they have a clear understanding of how to approach their task. Interfering with the investigative process when it is underway is fraught with risk.