How to get disciplinary investigation reports right

3 Feb 2020 By Hannah Netherton and Felicity Bramall

Reports should be about fact-finding and not decision-making but, as Hannah Netherton and Felicity Bramall explain, the balancing act can be tricky

Writing a disciplinary investigation report is a difficult task and most investigators will take advice from HR or their legal team. The challenge for an investigator is to ensure that the report contains findings of fact and does not stray into decision-making territory. While that may sound straightforward, in practice this is a difficult balancing exercise. 

In Dronsfield v University of Reading, an investigator received legal advice that the investigation report had gone too far and the evaluative conclusions (which were favourable to the claimant employee) should be removed. A central issue on appeal was whether a dismissal based on an amended investigation report could be fair.

The answer in this case was yes. The Employment Appeal Tribunal (EAT) ruled that the changes in the investigation report did not render the dismissal unfair. 

The case involved Dr Dronsfield, a university associate professor in fine art who was dismissed for gross misconduct following a disciplinary investigation. Dronsfield subsequently brought a claim against the university for unfair dismissal. At first instance, he was found to have been fairly dismissed. The tribunal’s initial decision was overturned by the EAT and remitted to the tribunal for a fresh hearing. The second employment tribunal also found that the claimant had been fairly dismissed and he again appealed the decision.

Dronsfield originally admitted having sex with one of his students and failing to report the relationship to the university, as required by its internal rules. This was subsequently investigated by the university as part of an internal disciplinary procedure and a report submitted to the internal disciplinary tribunal.

During the investigation, the investigator received advice from the university’s in-house solicitor. While the advice itself remained privileged, the solicitor’s suggestions came to light as multiple versions of the report were disclosed as part of a freedom of information request. 

The initial draft had come to conclusions favourable to the claimant and the amendments removed some of these. Using the language of the university policy, the investigator had found that there was “no evidence to suggest that the conduct of Dronsfield constituted conduct of an immoral, scandalous or disgraceful nature”. 

The university’s in-house lawyer then made comments on the report, including that the statement be removed and instead that such evaluative conclusions should be the role of the disciplinary tribunal. On this advice, the statement was not included in the final report.

The EAT ruled that this change in the report did not mean that the overall dismissal was unfair, and the appeal was dismissed.

Case law has already established that HR personnel must ensure that any revisions made by them to the content of a report are advisory only and do not change the outcome of the investigation. The same should be said for legal reviews, notwithstanding that the advice may be subject to legal privilege. 

If the input of others is that a report is no longer the work of the investigator, it leaves open the possibility that a subsequent dismissal could be found to be unfair. The EAT found, in this case, that the lawyer had not overstepped the mark. The investigator had not been under undue pressure from the solicitor to change the report and, importantly, no evidential material had been left out of the final report.

The decision is a useful reminder of the need to ensure the investigation report does not contain conclusions. Points to take from this decision include:

  • The correct approach is to ensure that the investigation report contains findings of fact, and not evaluative conclusions. 
  • As part of the disclosure process a tribunal will normally see earlier drafts of a disciplinary investigation report, unless there are circumstances where the report itself is privileged. In this case there were seven previous drafts. 
  • Amendments relating to compliance with internal procedures, and the law generally, should not be problematic, but any pressure to alter findings could jeopardise the fairness of subsequent decisions.

Hannah Netherton is a partner and Felicity Bramall an associate at CMS

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