The Employment Appeal Tribunal (EAT) has recently confirmed that there is no legal requirement to hold a separate investigation meeting before a disciplinary meeting in order for a dismissal to be fair.
Mr Goddard, a hotel night porter, was suspended to allow for an investigation into alleged gross misconduct after he was found sleeping on duty. The investigation constituted a review of CCTV footage. Once the investigation was concluded, Mr Goddard was invited to an “investigation meeting”, which was in fact a disciplinary hearing. He was summarily dismissed at this hearing, and then brought claims for unfair and wrongful dismissal in the employment tribunal (ET).
The ET considered whether there was a reasonable investigation bearing in mind the circumstances of the case: this is one of the requisite elements for a conduct dismissal to be fair. The ET decided that the dismissal was unfair, on the basis of a procedural failing, in that there was no separate investigation hearing followed by a separate and distinct disciplinary hearing. The ET considered this was a failure to grant ‘a basic employment right’. The employer appealed this decision to the EAT.
The EAT criticised the ET's suggestion that separate investigatory and disciplinary hearings are required in every case by right. This is not the position under any of the relevant case law, legislation or the ACAS Code.
When dealing with an employee’s misconduct, it is essential for the employer to follow a fair procedure, where possible in accordance with the ACAS Code. However, it is not absolutely necessary to hold an investigatory meeting separate from a disciplinary hearing in order for a dismissal to be fair in every case. In any event an appeal should always be offered, which would provide an employee with a second chance to explain their case.
Employers should of course check if their employees have a contractual right to an investigatory meeting before a disciplinary hearing – this might be set out in the employment contract or staff handbook. If such a right exists, a failure to adhere to it would be a breach of contract and could also potentially lead to a finding of unfair dismissal.