For any dismissal to be fair an employer needs to demonstrate that it:
- had a fair reason for dismissal; and
- that it acted reasonably in treating that reason as sufficient to justify dismissal.
A key part of the second element of the test is that an employer conducts a fair investigation. In the case of Sunshine Hotel v Goddard, the Tribunal had to decide whether an employer’s failure to hold a separate investigation meeting rendered a subsequent dismissal unfair.
There is nothing in law which requires employers to hold a separate investigation meeting before holding a disciplinary meeting. The Employments Rights Act 1996 states that an employer must simply act “reasonably”, while the ACAS Code of Practice on Discipline and Grievances provides that “it is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing.”
Facts of the case
In the case of Sunshine Hotel v Goddard, Mr Goddard was dismissed for apparently sleeping on duty. He was suspended and invited to an investigation meeting. The meeting itself was in fact a disciplinary hearing and no separate investigation meeting took place. The employer’s investigation was limited to a review of CCTV footage. Mr Goddard was subsequently dismissed. He issued proceedings for unfair dismissal in the Employment Tribunal (ET) on the basis his dismissal was procedurally unfair given the failure to hold a separate investigation meeting.
The ET upheld Mr Goddard’s claim and was satisfied that his employer had failed to carry out a reasonable investigation. The employer appealed the decision on the grounds the tribunal had erred by basing its decision on the employer’s failure to hold a separate investigation meeting.
The Employment Appeal Tribunal (EAT) upheld the ET’s decision. The EAT recognised that there is no legal requirement to hold a separate investigation meeting but that in this case the employer had failed to satisfy the second element of the unfair dismissal test by not carrying out a reasonable investigation and failing to provide Mr Goddard with adequate opportunity to prepare for the disciplinary hearing. Simply sitting down and reviewing the CCTV footage was not enough.
Despite the EAT’s decision that a separate investigation meeting is not automatically required by law, we strongly advise that all employers continue to hold an investigation meeting prior to a disciplinary meeting so as to avoid the argument that dismissal of an employee has been procedurally unfair. We have appeared before Employment Tribunal Judges who have commented that a failure to hold a separate investigation meeting has tainted the procedural fairness of an investigation, potentially leading to a successful claim for unfair dismissal.
Employers should also carefully consider their own policies and procedures. For example, if there is a disciplinary policy or collective agreement which requires an employer to hold a separate investigatory meeting, this must be followed, as it will generally be unfair if an employer fails to comply with its disciplinary policy.