In this case, the EAT held that an employee's dismissal for misconduct that caused a serious health and safety issue was fair, despite minor procedural failings in the employer's investigation of the misconduct.
Facts
Mr Lamb is a qualified electrician, who was employed by Teva UK Ltd (Teva), a global medicines supplier, as an Engineering Supervisor.
On 21 June 2022, Mr Lamb was made aware of an electrical fault with a forklift charger. He and a junior colleague, Mr Link, inspected the charger and turned it towards the wall to signify that it was out of use. However, they did not follow Teva's policy, which required the use of a padlock to make clear that equipment was faulty and should not be used. This was apparent from CCTV footage.
On 12 July 2022, contractors attended the site to install new chargers. At 3.20pm, Mr Lamb signed a permit to confirm that the area was safe, clean and tidy. However, the electrical fault had not been fixed, and on 17 July a worker suffered an electric shock when attempting to use the forklift charger. The incident was categorised as potentially fatal.
Teva appointed Mr Lillington to conduct an investigation. As well as heading the investigation, Mr Lillington produced a witness statement confirming that he had heard another colleague inform Mr Lamb about the electrical fault on 21 June. The note-taker for the investigation, Ms Clark, also produced a witness statement, confirming that Mr Lamb had told her at a meeting the morning after the incident that he had been unaware of the electrical fault.
Mr Lamb was suspended on 18 July, following an initial investigation meeting with Mr Lillington and Ms Clark. His account of events changed during the investigation process, and he sought to place the blame on Mr Link, who is not an electrician.
On 26 July, Mr Lamb was invited to a disciplinary hearing to take place on 2 August with the Facilities Manager, Mr Dobinson. The invitation letter set out the alleged misconduct in detail, attached copies of witness statements and other evidence, and made clear that the CCTV footage would be available at the hearing on request. The day before the hearing, Mr Lamb was provided with a written summary of further CCTV footage from 12 July, which showed that he had not checked the area before signing the permit confirming it was safe.
Following the disciplinary hearing, Mr Dobinson decided to dismiss Mr Lamb for gross misconduct. Mr Lamb's internal appeal was unsuccessful, and an employment tribunal held that his dismissal was fair. Mr Lamb appealed on the basis that he considered there had been errors in the procedure followed by his employer and the tribunal had erred in not finding he was unfairly dismissed.
The EAT dismissed the appeal, holding that the tribunal had been entitled to find that the minor flaws in Teva's investigation did not render the process as a whole unfair.
For a misconduct dismissal to be fair, the employer must believe that the employee committed the misconduct in question, based on reasonable grounds, following as much investigation as is reasonable in the circumstances. In the EAT's view, an employer is not required to conduct the equivalent of a police investigation or a criminal court process. Rather, what is required is substantive industrial fairness that takes account of the seriousness of the allegations and ensures they are investigated fairly, looking both for material that may support or undermine them. The principles of natural justice are also key. These require that the employee should know the nature of the accusation made, they should be given an opportunity to state their case, and the decision-maker should act in good faith.
Where a disciplinary decision maker has prior involvement in the case, this will often render the decision unfair unless their prior involvement was insignificant or unavoidable. However, Mr Lillington was not a decision-maker; his role was to investigate.
Acas guidance suggests that employers should get someone who is not involved in the case to carry out the investigation, to ensure there is no conflict of interest. However, there is no absolute rule that someone who has had some involvement in the events cannot undertake the investigation, and Mr Lamb had not objected to Mr Lillington's role as investigator at the time. Ms Clark's role as note-taker was even less significant. Both Mr Lillington and Ms Clark's witness statements formed a relatively small part of the evidence that Mr Dobinson considered when making his dismissal decision, and their minor involvement as witnesses did not render the investigation process unfair.
As to the provision of additional CCTV evidence less than 24 hours before the disciplinary hearing, the EAT held that this did not involve any material change to the allegations that Mr Lamb had to answer, and the tribunal had been entitled to find that it did not impact the fairness of the process.
Finally, the EAT considered an overheard comment in a conversation between Mr Lillington, Ms Clark, and another manager before the disciplinary hearing, to the effect that Mr Lamb was "done at the business". Since none of the managers who may have made the comment was involved in the decision to dismiss, the EAT agreed with the tribunal's finding that it did not render the process unfair.
What does this mean for employers?
The decision in this case is reassuring for employers, as it demonstrates that slight procedural flaws in an investigation will not necessarily undermine the fairness of a misconduct dismissal. However, the witness evidence provided by the investigator in this case was of relatively minor importance to the dismissal decision. If a manager who is leading an investigation into alleged misconduct is also a key witness, that might well affect the fairness of the procedure. An employer in that situation should consider appointing an alternative investigating manager.
Employers should also bear in mind the EAT's recommendation that employers read and follow the Acas Code of Practice on Disciplinary and Grievance Procedures, which it described as "clear and concise", and the Acas Guide on Conducting Investigations in the Workplace.
