UK: Sins Of Omission – Changes To Investigator's Report Did Not Make Dismissal Unfair

An employer will often take advice from legal or HR teams during a disciplinary investigation. However, if this advice is so extensive that the investigatory report is no longer the product of the investigating officer, there is a risk that a subsequent dismissal will be unfair. The EAT decision in Dronsfield v The University of Reading found that changes to an investigatory report made at the suggestion of an in-house lawyer did not make a disciplinary process unfair.

The employee was an academic who was accused of having a sexual relationship with a student in breach of the University's guidelines. Under the disciplinary rules in force, he could only be dismissed if his conduct was of an "immoral scandalous or disgraceful nature". The University appointed a disciplinary investigator, whose draft report concluded that the academic's conduct was not of such a nature. However, the investigator removed that conclusion from the final report at the suggestion of the University's in-house lawyer. Disciplinary action was taken and the academic was dismissed. He claimed unfair dismissal, in part on the basis that the disciplinary investigation was unfair.

The employment tribunal and EAT dismissed the claim. The in-house lawyer suggested the changes to the report to ensure that its focus was on the facts of the case. Drawing conclusions from those facts was the role of the subsequent disciplinary tribunal. It appeared that the investigator had accepted this and made his changes as a consequence. The investigator had neither been subjected to improper pressure nor withheld evidence from his report. There was no suggestion of serious impropriety in the way the investigatory process had been handled and the academic had addressed the changes to the report during his appeal hearing. The tribunal had considered the changes and why they had been made and did not consider them to be unreasonable or that they rendered the process unfair.   

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