208: Removing views helpful to employee from draft investigation report did not make dismissal unfair (Employment Appeal Tribunal)
In the recent case of Dronsfield v The University of Reading, the Employment Appeal Tribunal (EAT) considered whether an employee had been unfairly dismissed where views helpful to his case had been removed from the investigation report in response to legal advice.
Dr Dronsfield worked as a professor at the University of Reading. He admitted to having a sexual relationship with one of his students. Under the University’s rules, he could only be dismissed for conduct which was ‘immoral, scandalous or disgraceful’. A department head, Professor Green, and an HR manager, Ms Rolstone, were appointed jointly to investigate allegations that Dr Dronsfield had created a potential conflict of interest by not reporting his relationship; abused his position of power; breached his duty of care; and held late-night meetings with female students involving alcohol. Initial drafts of the investigation report were reviewed by the University’s in-house solicitor. The final version omitted some findings that would have been favourable to Dr Dronsfield, including the investigators’ opinion that there was no evidence that his conduct had breached the University’s rules. Following a disciplinary hearing, Dr Dronsfield was dismissed for gross misconduct. His appeal was heard by an external barrister who had seen the earlier drafts of the investigation reports as a result of a freedom of information request made by Dr Dronsfield. The appeal was not upheld and Dr Dronsfield brought a claim of unfair dismissal.
The Employment Tribunal found that Dr Dronsfield had been fairly dismissed. On appeal, the EAT remitted the case back to a fresh Tribunal to consider precisely why the comments favourable to Dr Dronsfield had been left out of the final investigation report and whether it had been reasonable for the University to conclude that his conduct had met the required standard for dismissal. The Tribunal again found that his dismissal had been fair, ruling that it had been reasonable and sensible for the in-house solicitor to advise the investigators. It was also reasonable for Professor Green and Ms Rolstone to act on that advice by changing the focus of their conclusions in the report, limiting them to whether there was a prima facie case to answer and removing their evaluative opinions on Dr Dronsfield’s conduct.
Agreeing with the Tribunal’s reasoning, the EAT has now dismissed a further appeal by Dr Dronsfield. The investigators had accepted legal advice that any opinions as to whether his conduct breached the University’s rules should be left to the subsequent disciplinary panel, and there was no suggestion that any evidential material was withheld from the investigation report. In addition, Dr Dronsfield’s submissions about the changes to the report had been properly considered at the internal appeal stage. It was clear that the Tribunal had considered these points and the overall fairness of the disciplinary procedure followed by the University.
This decision is a useful reminder that the role of an investigator is to summarise the factual findings and recommend whether the employer should take formal disciplinary action. In practice, the investigator will inevitably need to make some evaluative conclusions in order to decide their recommendations. However, they should not prejudge the outcome of any subsequent disciplinary hearing or suggest a possible sanction. Although the investigator can seek advice from a third party such as HR, the conclusions in the report should be their own.