Employers be aware: earlier drafts of disciplinary documentation are disclosable in Tribunal proceedings

Written by Brabners LLP

 

In the recent case of Dronsfield v The University of Reading, the Employment Tribunal considered if an employer had unfairly dismissed an employee as a result of not disclosing draft versions of a disciplinary investigation report that portrayed the employee in a positive light.

The ACAS guide to conducting workplace investigations advises that:

  • The investigation report should summarise the factual findings of the investigation;
  • The investigator should restrict their conclusions to recommendations on whether the employer should take formal action, such as holding a disciplinary hearing. The investigator should not suggest a possible sanction or prejudge the outcome of the disciplinary hearing;
  • The report should reflect the investigator’s own conclusions. While an investigator may seek advice from a third party such as HR, the conclusions should be their own.

In this case, the investigatory report was amended upon advice from the employer’s in-house solicitor and only the final version was disclosed in the disciplinary hearing. The question was whether this change to the report made the subsequent dismissal of the employee unfair.

Employers and recruiters should take note as this decision shows how earlier drafts of any document can be used as evidence in unfair dismissal claims. What can employers do to mitigate the risk? Read on to find out more!

The facts

By way of background, Dr Dronsfield was an associate professor of History of Art at the University of Reading before being dismissed for gross misconduct after it was revealed he had an affair with one of his students.

Prior to Dr Dronsfield’s dismissal, Ms Rolstone (one of the university’s HR partners) and Professor Green (a Head of Department) were selected to investigate allegations of:

  • Sexual liaisons with a student, which may constitute a conflict of interest
  • Breach of his duty of care towards students
  • Abuse of power to compel a student to enter an intimate relationship
  • Hosting events with female students late at night with students where alcohol was served

Ms Rolstone and Professor Green produced a joint draft investigatory report which the university’s in-house solicitor considered. The draft report contained conclusions which cast Dr Dronsfield in a positive light; particularly that his behaviour was not ‘immoral, scandalous or disgraceful, he had not abused his power and he had not breached his duty.  Following advice from the university’s in-house solicitor, these conclusions were removed from the final version of the report, as these were decisions which should be left for the disciplinary hearing and should not be made at the investigatory stage. Therefore in heeding to the solicitor’s advice, the final report contained no inclusion of previous drafts.

After the investigatory report was made and the disciplinary process concluded, Dr Dronsfield was dismissed. He appealed the decision. The internal appeal was overseen by an external barrister who had sight of the previous, potentially exonerating reports. Nevertheless, the barrister upheld the university’s decision and concluded their decision was fair.

Still not satisfied, Dr Dronsfield brought a claim to the Employment Tribunal. The Tribunal ruled that Dr Dronsfield had been fairly dismissed. Dr Dronsfield appealed that decision to the Employment Appeal Tribunal which in turn sent the case back to be heard by a different Tribunal. The Tribunal was specifically asked to consider Professor Green’s reasons for amending the final report and removing his conclusions.

Decision

The Tribunal held the decision reached by the first Tribunal was correct – Dr Dronsfield had not been unfairly dismissed. The Tribunal found that it was reasonable for Professor Green and Ms Rolstone to have changed their draft report after taking advice. The university’s solicitor had advised the investigators not to form evaluative conclusions regarding Dr Dronsfield’s conduct, specifically as this was for the disciplinary hearing panel to decide.

What can be learnt from this decision?

Although the Tribunal ruled in favour of Reading University in this instance, the case raises issues about the role of in-house solicitors and HR in disciplinary proceedings. Employers and their HR departments would be wise to think carefully about the way investigatory reports are compiled, how amendments are made and documents are handled. The Dronsfield case demonstrates that all drafts of any report, including interviews are disclosable in Tribunal proceedings.

Employers should make sure they are familiar with their company’s disciplinary policy and it is adhered to correctly. These policies are inherent to employers protecting themselves against potential unfair dismissal claims in the Tribunals. Evaluative conclusions should be left to the disciplinary panel and an investigator’s role should be limited to that of an investigator, not a decision-maker. HR will no doubt be well versed in the disciplinary process, but in order to complete an investigation effectively businesses should set out clearly the reasons for the investigation, what allegations have been made, what factual findings have been made and the reasons why the investigator has recommended disciplinary action or not.

If possible any advice from HR or legal advisors should be taken before the investigation starts. That way there is less chance of allegations of enhancements being made. HR should limit their advice to issues of law, procedure and process; the ultimate decision on the facts should be left to the disciplinary hearing manager.

 

This bulletin is for general guidance purposes only and should not be used for any other purpose. Brabners is a Limited Liability Partnership.

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