Pissing in the wind

A relatively recent Employment Appeal Tribunal decision (Asda v Raymond) considers whether in order to conduct a reasonable investigation an employer should not only investigate what happened but also whether there are underlying causes for the conduct (why they happened).

The claimant in the case was a lorry driver and parked his lorry in a parking bay. He needed to urinate and found a discreet corner and did so. A security guard saw and reported this to a manager. The claimant’s case throughout was the actual conduct alleged in the dismissal letter (urination on company grounds) was not disputed but that this was a result of an urgent need to urinate, toilets being some distance away, and the claimant’s diabetes (one symptom of which is often an irregular and urgent need for urination).

A Mr Godliman was tasked to investigate and the first instance ET made the following findings of fact about that investigation:

In due course Mr Godliman was assigned to investigate the matter. He was provided with a copy of the CCTV footage taken on the day in question. He approached the Claimant on the 4th April 2016 without prior warning and commenced an investigation meeting. On learning that the Claimant wished to have a representative present he adjourned the meeting to the 8th. The minutes of that meeting are at pages 112-115 of the bundle. Mr Godliman has, as is entirely proper and conventional in cases of this nature been cross examination [sic] on the question of how he approached his task … He did not consider himself to be under any duty to carry out any investigations from the Claimant’s perspective. He admits that he did not consider it necessary to look into the reasons why the Claimant had urinated and he didn’t consider it necessary to obtain any medical evidence despite the relevance of the Claimant’s diabetes being urged upon him by the Claimant’s representative Mr Hall. He did not visit the scene of the incident and carried out no investigation into the question of the distance between the yard and the nearest available toilet. We can conclude this point by quoting his answers to two questions put to him in cross examination; ‘All I did was get the CD with the E-Mail and interview Raymond. I did no further investigation. He admitted urinating that is gross misconduct.’

The tribunal determined that the dismissal was unfair because there was was no reasonable investigation and, therefore, not a genuine belief in the claimant’s guilt (applying the Burchell tests). The tribunal also ruled that the dismissal arose from something arising from disability and was discriminatory. The employer appealed these findings (unfair dismissal, discrimination, and also an order for reinstatement).

The EAT roundly rejected the appeal. Although not directly relevant to this post the decision also includes a good case example of the importance of an employer precisely framing a disciplinary allegation. There was a more serious allegation that the claimant had deliberately urinated on food trays in the dismissing manager’s mind but which was not set out clearly. Had the employer reasonably found that allegation proven it is hard to envisage the discrimination argument would have been successful (although the unfair dismissal finding in respect of a reasonable investigation may have stood if there was no investigation into health context).

The case does not break any new ground (for example, essentially the same approach was adopted in a 2009 case) but this is a useful case for employee representatives. Even when the facts of an alleged infraction (the what happened question) are uncontested in a disciplinary investigation, that does not necessarily mean that the investigation is a reasonable one required for a fair dismissal.  In some cases, principally but I don’t think exclusively in cases where it is suggested by an employee that there are health-related reasons laying behind the ‘what happened’ question, a reasonable investigation also requires a second question:  ‘why did the event happen?’

A fair dismissal process requires not only a reasonable investigation but also a reasonable belief on the part of an employer that the employee did the alleged misconduct.  What the EAT in Raymond affirmed was that if the investigation was fatally flawed because the ‘why’ question is not asked in relevant cases then an employer may well not meet the reasonable grounds of belief test. That is a fundamental building block of a reasonable dismissal for misconduct and therefore something it will be useful for employee representatives to be alert to if that question has not been asked in a relevant case.

 
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