Failure to investigate misconduct before dismissing employee was not unfair

The recent Employment Appeal decision in Radia v Jefferies International Ltd is a good case study in how established ‘fair process’ norms will not always render a dismissal unfair. Somewhat unusually since I tend to be critical of such deviation in this case it strike me that the decision is a reasonable one and that in this case a dismissal without prior independent investigation was nonetheless reasonable.

The facts of the case can be summarised fairly simply. The claimant was a regulated professional (working in the finance field). In separate proceedings the claimant had made a victimisation complaint against his employer and the employment tribunal, after hearing evidence, rejected his claim and had made adverse findings about the claimant’s credibility and honesty which they expressed concern about given the claimant was a regulated person.

When the employer received the judgement they suspended the employee. Because the tribunal had cross examined the witnesses and made an assessment of the evidence the employer did not separately conduct an independent investigation before convening a disciplinary meeting, at which the employee was dismissed.

Understandably enough given the conduct for which he was dismissed (implied dishonesty) in a discrimination case the claimant claimed not only that he was unfairly dismissed but that the dismissal was victimisation for the earlier instigation of employment tribunal proceedings.  Interestingly, the employer failed to allow the employee to appeal against the dismissal and, in this respect, the dismissal was found unfair.

Although it will normally be appropriate for there to be a separate independent investigation before a disciplinary meeting is convened (especially in cases at which dismissal is a possibility) in the circumstances the tribunal considered that there was nothing else the employer could reasonably investigate before putting the allegations to the employee at a disciplinary hearing.

As I have said, I don’t really think this decision can be criticised but it does emphasise that there will not always be a hard and fast rule that every stage of a disciplinary process or the ACAS Code of Practice will need to implemented for a dismissal procedure to be fair. Each case must be assessed on the specific facts and information known to the employer – while in this case this meant not conducting an investigation was reasonable sometimes it will mean going beyond local policies to address unfairness.