Useful case law for Investigators – 2

Tribunal criticises investigation into sexual harassment claim

An Employment Tribunal has found that a sales manager was sexually harassed by her managing director, having been asked multiple times for a massage and having been asked to sleep with him.

Emma Woolf worked as a sales manager for Universal Science, a Milton Keynes-based thermal cooling material provider, from August 2016 until she resigned in November 2017. During that time there were a number of incidents that amounted to sexual harassment. Woolf resigned on 12 November 2017 and submitted a grievance letter in respect to non-payment of commission and allegations of sexual harassment.

At the formal grievance meeting the external consultant who was appointed to undertake the grievance investigation concluded there was “no evidence to support Emma’s allegations of sexual harassment”. She recommended that the grievance be dismissed due to lack of evidence. Subsequently, Woolf’s claims for sexual harassment and breach of contract were turned down.

The Tribunal thought otherwise, saying Woolf suffered sexual harassment by her employer and by her managing director. It went on to criticise both the respondent’s HR manager and the external consultant for having failed to fairly and objectively consider harassment allegations. “It was apparent to us that any reasonable investigation would have uncovered those matters which were expressed in evidence so convincingly before us,” adding that “neither… really looked fairly and objectively into the allegations and were quick to reach conclusions that there was nothing to support allegations made by the claimant.


“Insufficient” investigation leads to UD award

A probation officer accused of developing an “abusive and controlling relationship” with a former offender has been awarded £57,500 for unfair and wrongful dismissal.

Julia Hyland (JH), a probation officer at Cheshire & Greater Manchester Community Rehabilitation Company, was dismissed after a service user (SU) alleged she developed an “aggressively abusive” relationship with him.

However, the employment tribunal has ruled that Hyland was unfairly dismissed because the investigation into the “complex” and “highly unusual” case was insufficient, given that the claimant was facing potentially career-ending allegations. It judged that there had been a failure to adequately seek evidence in her defence.

Hyland had worked as a probation officer for 19 years before the allegations led to the termination of her employment in 2017. Whilst working as senior case manager with perpetrators of domestic violence aged 25 and under, the SU made the allegations against her.

In August 2016, JH was invited to a meeting and informed that she would be suspended. She denied the allegations as “unbelievable” and “utter nonsense”, but was escorted from the office. In the same month a manager in her organisation was appointed investigating officer.

Although JH submitted evidence to the investigating officer, and made suggestions as to how her evidence could be corroborated, these were not followed up. On the basis of the investigation the employer concluded there was a case to answer and at the disciplinary hearing in August 2017 JH was dismissed for failing to uphold the professional standards expected of her. A subsequent appeal was heard and rejected.

In reviewing the process the tribunal concluded that while there was convincing and compelling evidence on both sides, the investigation had ultimately been insufficient, citing failures to investigate possible faked messages. Given that JH’s livelihood was on the line, the tribunal took the view that a more thorough assessment should have been undertaken to verify the information provided. It noted that that had been “a blanket acceptance” that everything the SU said was accurate.


HMRC failed to properly investigate racist remark

A Tribunal has found that an HMRC employee who felt unable to return to work after a contractor shouted a racist remark at him in a corridor was the victim of racial discrimination. The HMRC had failed to adequately investigate his complaints, suggesting that it was more appropriate for the perpetrator’s employer to discipline him. It then further failed to ensure this had been adequately carried out.

Following an incident in June 2016, when during a power failure in a Manchester tax office a facilities worker employed by G4S made a racist remark to Mr Jayeola, an HRMC assistant officer. Jayeola made a complaint to G4S following the incident but after seeing the worker again the following felt he had to leave the building. He did not return to work after that point.

Despite complaints from Jayeola about the time being taken for G4S to investigate the incident, which was causing him health problems, the senior manager dealing with the case was advised by the HR team that if Jayeola was unhappy, he should contact G4S directly. When he said he wanted the G4S employee either to be dismissed or moved to a different location, G4S told HMRC no further action would be taken.

The Tribunal found that HMRC did not adequately investigate the incident, accepting G4S’s statements at face value, and held that the organisation would have treated a hypothetical comparator – a white person – differently, which constituted racial discrimination. It said HMRC’s refusal to remove a known discriminator from the workplace was a clear breach of the diversity policy and shows that it “simply paid lip service to its declared zero tolerance policy”.


Failure to investigate properly leads to unfair dismissal ruling

An Employment Tribunal has ruled that a hospital security officer was unfairly dismissed. After lodging a grievance his employer failed to properly investigate the issues he had raised.

Mr Brough began work at Sheffield Teaching Hospitals NHS Trust as a full-time security officer in January 2012. In January 2016 he emailed the Trust’s chief nurse on behalf of a security officer working at the site about “difficulties” that had arisen in the department, claiming that security officers “had lost trust in management”.

Following contact with the HR department Mr Brough was told that officers “should not go straight to executive colleagues but should use the appropriate workforce policy”. The officers then contacted their trade union and raised a collective grievance, written by Mr Brough and signed by seven individuals.

The hospital instructed an independent HR consultant to investigate the grievance. He interviewed managers and some of the complainants in October 2016. After initial meetings, all the individuals withdrew from the grievance, with Mr Brough the last to do so. The consultant suggested the Trust consider “whether any further action should be taken” as a result of the grievance being lodged and then withdrawn. He cited provisions in the grievance and disputes policy and the acceptable behaviour at work policy suggesting that where grievances or complaints were found to have been made maliciously or in bad faith they would be treated as potential gross misconduct.

However the Tribunal believed that the consultant “had not investigated the grievance, made findings of fact and determined it had been made maliciously or in bad faith”. He had “simply conducted some initial interviews”.

Although a further investigation by a senior manager concluded that it was unclear whether the complaint had been made in bad faith, Mr Brough was subsequently suspended. The manager invited him to further meetings, and the notes of these meetings “do not record her going through with him the substance of the underlying complaints or the evidence relating to those” according to the Tribunal. The manager did not show Mr Brough the notes of interviews with other individuals involved in another disciplinary proceeding but which related to his case, or further evidence from the grievance investigation. Mr Brough later heard that her view was that the collective grievance “had been submitted in bad faith and should be considered as a disciplinary matter”.

A disciplinary hearing found that Mr Brough’s actions amounted to gross misconduct and he was dismissed with immediate effect. The Tribunal found however that the manager who dealt with the case did not explain “what findings of misconduct he had made”, did not “explain what sanctions he had considered” or ask Mr Brough about mitigating circumstances.

In summary the Tribunal took the view that the way the case had been dealt with was “outside the range of what was reasonable in terms of investigation, grounds for belief and procedure”.


Tribunal condemns failure of procedure in whistleblower’s dismissal

The former CEO of a medical staffing agency who was dismissed after raising concerns over financial discrepancies and tax avoidance has been awarded £60,000 by an employment tribunal, in compensation for unfair dismissal and injury to feelings as a result of protected disclosure detriment.

The London Central Employment Tribunal found that Capital Care Services (CCS) subjected Faiza Rizvi to protected disclosure detriments after she raised concerns that both CCS and its parent company, Positive Healthcare, were deliberately taking large sums of money out of the business to avoid paying tax.

CCS threatened to report her to newspapers, accused her of fraud, blocked access to her company email account and disconnected her mobile telephone. In dismissing her summarily CCS failed to follow a fair procedure, but, as the Tribunal put it, they were “not interested in establishing the truth of any allegations against [Rizvi], but simply wished to dismiss her, come what may.”

The Tribunal found CCS had not invited Rizvi to a disciplinary meeting before sending the letter of dismissal and had not provided any written evidence or written statements. It did not investigate the allegations against Rizvi before dismissing her, nor hold a disciplinary meeting. It also did not provide her with any right of appeal against her dismissal.

The company had, in summary, behaved in an “unreasonable and oppressive way” and that “the reason for the dismissal was the fact that the claimant had made protected disclosures.” The claimant’s dismissal was therefore ruled automatically unfair.


“Deeply flawed” investigation contributes to successful race discrimination claim

A London tribunal has awarded just over £16,000 to a trainee emergency call operator for race discrimination following an inadequate disciplinary process by his employer Partnership of East London Cooperatives (PELC).

Jerry Ogbonna was suspended without pay five days into his employment following accusations that he was consuming and distributing illegal drugs to his colleagues.

The subsequent investigation did not properly identify what drugs or substances were consumed or by whom, or even establish the legality of the drugs in question. He had in fact been using an off-the-shelf caffeine supplement widely available in supermarkets.

The Tribunal found that the accusations that Ogbonna had consumed ‘smart’ drugs were “a series of speculation and innuendo devoid of real substance and containing surprisingly little facts”. While there was no deliberate falsification, the Tribunal was harsh in its judgement of the way the investigation was conducted. “The investigation did not properly identify what drugs or substances were consumed and by whom. The investigation did not clarify who else was given such drugs or substances. Astonishingly the investigation did not ascertain the legality of such drugs or substances…The conclusions of the investigation were wholly unsustainable. This was a deeply flawed investigation at every level.”


“Offensive” tweeter unfairly dismissed after investigation failures

A civil servant who was dismissed by the Department for Work and Pensions (DWP) after he posted “racist and political” tweets from a personal social media account was unfairly dismissed, an Employment tribunal has found.

Ayub Patel (AP) was employed at the DWP between 18 December 1991 and 1 December 2017. According to the organisation’s behavioural policy, civil servants must not signal any political affiliation, and must “avoid making any kind of personal attack or tasteless or offensive remarks to individuals or groups” in person or on social media accounts.  They are obliged to review the behavioural policy on an annual basis, and are warned that failing to comply can have serious consequences, including dismissal.

In late 2017, the DWP investigated an anonymous complaint that AP had breached the standards of the social media policy in tweets from his personal Twitter account which included messages referencing far-right extremist Tommy Robinson; US president Donald Trump; and “white male Christian” gun owners.

At an investigation interview AP accepted that some of the comments were offensive, but said that during a previous security presentation a trainer had indicated that if nothing on a personal Twitter account associated the owner with the DWP, it did not matter what was tweeted. He expressed regret for his actions, and said that if he had realised he was in breach of company standards he would not have behaved the same way.

However the disciplinary hearing but did not review every offending tweet with AP, or give him the opportunity to comment on each of the tweets that were used when reaching the decision to dismiss.  It also failed to investigate further into what had been said regarding social media during the training sessions AP had attended, or seeking to find out where the original complaint about his conduct had come from. His appeal was also turned down.

The tribunal found that the failure to properly investigate every aspect of the case, that no clear reason for the decision to dismiss Patel for gross misconduct had been given, that whether AP had deliberately breached the behavioural policy had not been established, and that he had expressed contrition, meant that the dismissal had been unfair. However given his offensive remarks on social media, he was charged a contributory fault of 50 per cent.


NHS Trust guilty of race discrimination due to “fundamentally flawed” investigation

A Tribunal has judged that a former NHS trust manager was unfairly dismissed and suffered race discrimination because the investigation into the incident was “fundamentally flawed”.

Richard Hastings, an IT manager at King’s College NHS Foundation Trust, was dismissed for gross misconduct after he was accused of assault following a dispute with a van driver in his workplace car park. However, the tribunal found that investigators made up their minds about his guilt. “He was assumed to be the aggressor. The white witnesses were accepted to be the victims”. As a result they only pursued evidence that would support this view, and opportunities to collect further evidence to support his claims of innocence were repeatedly missed. Furthermore the investigation report was “worded in a manner that called into question the veracity of [Hasting’s] evidence”.

Hastings – who was of African Caribbean origin – was therefore, in the Tribunal’s view treated less favourably than a white counterpart would have been. The Tribunal found the Trust guilty of unfair dismissal and racial discrimination.


Tribunal rulings come down hard on procedural failings

Over the past few months a number of EAT rulings have highlighted the part procedural faults can play in successful Tribunal Claims.

* The case of a flexi-worker dismissed for “aggressive and threatening behaviour” needs to be reheard as the EAT said that the Tribunal had failed to properly assess whether the dismissal had been unfair in the light of allegations that other employees accused of more serious misdeeds – including punching another colleague – still worked for the company.

* Two repair contractors who were dismissed for gross misconduct after they were discovered to have used company vehicles for personal purposes, were unfairly dismissed a Tribunal has ruled. While the pair were at fault for misusing the vans, the tribunal found their employer failed to thoroughly investigate the issue before dismissing them.

* An employee of a motorcycle manufacturer who was fired after she called one of her colleagues a ‘knob head’ in a workplace email was unfairly dismissed, the EAT has ruled. In upholding the Tribunal decision – described at the time as “unfair procedurally and fatally flawed” – the EAT agreed that the dismissal was unreasonable because of the employer’s refusal to postpone the disciplinary hearing for a second time so that a particular union representative could attend.


“Flawed” investigation means claim for unfair and wrongful dismissal upheld

A Tribunal has found that a Poundland store manager was unfairly and wrongfully dismissed when she was fired for allegedly stealing a drink. Miss Stokes was awarded nearly £21k plus costs when the Tribunal found that the discount chain had no reasonable basis for its belief of her supposed misconduct, and had followed a flawed investigation process.

Stokes worked at Poundland from 2009 as an assistant manager and later store manager. She was successful in her role until a new area sales manager joined in 2015. In June 2017, the area sales manager entered Stokes’ office without warning to investigate an allegation that she had taken drinks from the “damaged stock” area. She was told that CCTV footage showed her consuming the drinks, although she was only shown a few seconds of the footage, walking with a drink in her hand.

Stokes, who was not offered representation, said she thought they were vexatious and malicious accusations as they had occurred shortly after a performance management meeting with an “underperforming” supervisor.

However, Stokes responses were given “scant regard” and the full CCTV footage was not produced, despite requests.

At her investigation meeting, Stokes mentioned finding some drinks on the shop floor, which were out of date. However, she could not recall walking into the office with a drink, noting that she had been working excessively over the last month – including 55-hour weeks and with no assistant manager – and was “frankly exhausted”.

During an adjournment at her investigatory meeting Stokes gave the name of the supervisor, as he was with her during the alleged incident. She was told to leave while the two managers at the interview called him, but no record or statement of the call was produced.

Stokes was suspended and forbidden to contact staff, while the area manager undertook further investigations. None were carried out and no statements were taken from witnesses and no investigation report was produced.

Having had the disciplinary hearing postponed onceas it was at too short notice”, Stokes lodged a grievance against the supervisor and raised concerns about the investigation, requesting another. Although she did not receive a reply, her grievance and the concerns were discussed at her disciplinary hearing. She disagreed with her grievance being part of the hearing. Her request for a further investigation was ignored.

Poundland dismissed Stokes by letter, upholding the theft allegations. She appealed. This was first delayed by a month, then adjourned as the person concerned lacked the papers and needed to further investigate. Ultimately the appeal was rejected.

The tribunal found that the theft investigation, which should have been “very thorough”, was “flawed” and raised concerns of bias and lack of representation or formal meetings. It also raised concerns around the lack of CCTV and other evidence.