Employment Law Speed Read – 12/11/18

Facts

Mr Hargreaves was employed as a Teacher of Art and Design at Manchester Grammar School from 1 September 2005 to 17 June 2016. During this period, Mr Hargreaves had not been subject to any formal disciplinary action. In March 2016, it was alleged that Mr Hargreaves had assaulted a pupil. The pupil said that Mr Hargreaves had grabbed him, pushed him against a wall and put two fingers against his throat.

Following an internal investigation, Mr Hargreaves was invited to attend a disciplinary hearing. The employer made the decision to withhold evidence from the disciplinary panel regarding potential witnesses who had stated that they had not seen the alleged misconduct occur. The disciplinary panel found that on the balance of probabilities, the allegations against Mr Hargreaves were proven. There was no evidence to suggest that the allegations were malicious or dishonest.

Mr Hargreaves unsuccessfully appealed against his dismissal. Subsequently, Mr Hargreaves brought a claim to the Employment Tribunal (ET) alleging that he had been unfairly dismissed.

Employment Tribunal

The ET found in favour of the employer and held that Mr Hargreaves had not been unfairly dismissed. The ET held that the employer had carried out a reasonable investigation. Further, the investigation was not biased against Mr Hargreaves; the employer had approached the process with an open mind and had considered the relevant evidence.

Further, the decision regarding who to interview and what evidence to put forward to the disciplinary panel had fallen within the band of reasonable responses. The ET held that the employer was entitled to decide not to inform Mr Hargreaves or the disciplinary panel about the interviews with the potential witnesses who had not seen the misconduct occur. The ET held that merely because an individual had not seen the misconduct, did not mean that it had not happened.

Mr Hargraves appealed to the Employment Appeal Tribunal (EAT) on the basis that, given the seriousness of the allegations made against him, the investigation carried out by his employer was inadequate.

Employment Appeal Tribunal

The EAT dismissed Mr Hargreaves appeal. The EAT held that the employer had acted within the band of reasonable responses when it made the decision to withhold evidence from Mr Hargreaves and the disciplinary panel. The employer had reasonably formed the opinion that the excluded evidence was immaterial and would not assist the panel.

The EAT accepted that the allegation against Mr Hargreaves was “devastating” and would be likely to have significant consequences for him. The EAT acknowledged that the implications that an allegation may have for an employee is a relevant consideration when determining whether or not an investigation was reasonable. However, this did not mean that the employer “has to adopt the kind of safeguards present in criminal trials; the test remains that of the band of reasonable responses of the reasonable employer.”

The EAT also attached significance to the fact that Mr Hargreaves was aware of the evidence in question, and could have therefore asked for the evidence to be pursued.

Comment

This case demonstrates that withholding evidence from a disciplinary panel will not automatically render a dismissal unfair.

However, it does not necessarily follow that a dismissal will always be fair if the employer has failed to disclose evidence. The EAT emphasised that employers are under an obligation to ensure that disciplinary panels are not provided with a misleading or incomplete picture.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.