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Could your disciplinary investigation become a constructive dismissal claim?

April 26, 2023

It all seems straight forward enough. Allegations of misconduct are made against an employee, so you carry out an investigation, conduct a disciplinary hearing, decide on the disciplinary outcome and hear any appeal.  But what if you don’t get as far as inviting the employee to attend a disciplinary hearing or even concluding the investigation?

Imagine the employee being investigated resigns in response to you having “seriously breached” their employment contract. Next thing you know, you receive a call from an Acas conciliator informing you that your now ex-employee wants to make a claim to the Employment Tribunal for constructive dismissal and asking whether you wish to participate in ‘Early Conciliation’. What on earth could you have done, you ask, when investigating the allegations that they took to be a fundamental breach of contract? Here are five common scenarios:

  1. Not making amends

During the course of the investigation it’s discovered that there was never a case to answer and the employee’s line manager knew this all along. Once discovered, the investigation is stopped. 

By not doing more, for example, telling the employee you believe their version of events, reassuring them that no further action will be taken, offering an apology or offering a move to a different department, you could have missed an opportunity to stop matters escalating into a state of affairs that would justify the employee resigning in response to their line manager’s actions.

  • Suspension

The allegations were serious, so you suspended the employee pending the outcome of the investigation.

One upon a time suspension was considered step 1 of any disciplinary procedure, but times have moved on and a decision to suspend might be viewed as a ‘knee-jerk reaction’. What may also surprise you is, the more serious the allegations, the more care you should take before suspending. Thought should always be given to whether there is another alternative, for example, home-working or a change in shifts or duties.

  • Failure to make reasonable adjustments

The employee asked to have a family member at the investigatory meeting because they suffer from depression and you refused the request.

While there is no right to be accompanied at an investigatory meeting, you do need to consider whether the employee has a disability and, if so, how that disability might affect their ability to attend and fully participate in an investigatory meeting.  Allowing the employee to be accompanied by a family member could be a reasonable adjustment to make while its refusal could be discrimination.

  • Lack of engagement with a grievance

The employee claimed to have done nothing wrong and their line manager made the allegations up because of a long running feud between them. You wrote this off as an attempt to shift blame.

Giving short shrift to what is a grievance could be grounds to resign, as could failing to conduct a grievance procedure in a fair and proper way which could mean holding fire with the disciplinary procedure until the grievance has been heard or conjoining the grievance and disciplinary procedures, if that is more appropriate.

  • Invitation to resign

You thought it was obvious that the disciplinary procedure was only going to end one way, so you invited the employee to resign on favourable terms – a clean disciplinary record and pay in lieu of notice.

Whilst you may think that you are doing the employee a favour, and potentially saving yourself some time and hassle in the process, how this is handled could amount to a vote of no confidence in the employee without reasonable and proper cause.

What do these scenarios have in common?

What all of these scenarios have in common is the employer is in breach of the implied duty of mutual trust and confidence: “The employer must not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of trust and confidence between employer and employee” (Malik and another v Bank of Credit & Commerce International SA). A breach of the implied term will inevitably lead to the conclusion that there has been a fundamental breach of contract. Motive is not crucial; if, looked at objectively, the conduct is likely to cause serious damage to the employer/employee relationship, a breach of the implied term may have taken place.

How can you help yourself?

When dealing with disciplinary investigations it can be hard to be critically objective about yourself, but a Tribunal will not pull any punches. It will assess whether the effect of your conduct as a whole, judged reasonably and sensibly, means the employee can’t reasonably be expected to put up with it.

You can try and avoid this by asking yourself what are you doing, why are you doing it and how are you doing. It can also help to ask, if I were in the employee’s shoes, would I put up with this? If the answer is anything other than a resounding yes, you need to rethink your approach to the investigation.

If you have any questions on this on any other area of Employment law, please get in touch with Blackadders Employment Team, working in Aberdeen, Dundee, Edinburgh, Glasgow, Perth and across Scotland. 

The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.

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