Can the Investigator be a Member of a Disciplinary Panel?

In the case of First Citizen Bank v Brathwaite, the Court of Appeal upheld the Tribunal’s decision that Ms Brathwaite’s dismissal was unfair. But reduced the award for her unfair dismissal as per the Caribbean Court of Justice’s ruling in Chefette v Harris.
A disciplinary hearing may be fair and impartial – although an investigator was on the disciplinary panel. But the Court of Appeal warned that it was desirable for different individuals to carry out the investigation, disciplinary hearing and appeal hearing: see paragraph 25.
 
The Court of Appeal also stated that the exclusion of Ms Brathwaite from an investigative meeting did not automatically mean that her dismissal was unfair: see paragraphs 30 and 31. 

 

Analysis

 

Disciplinary Panel

 

There is a danger that an investigator on a disciplinary panel may have concluded that an employee is guilty of misconduct - before the disciplinary hearing has taken place. Hence, the investigator may ignore any evidence that suggests that the employee is not guilty of misconduct. However, such a danger did not arise in the Brathwaite case - because Ms Brathwaite had confessed that she was guilty of misconduct at the disciplinary hearing.

 

Investigative Meeting

 

In some cases, an employer may need to hold an investigative meeting with a suspect. In order to establish all of the facts of a case – to determine if there is a case for the suspect to answer.
An investigative meeting with a suspect may prevent them from being invited to attend a stressful and unwarranted disciplinary hearing (UDH). An invitation to attend an UDH is bad HR practice. And the suspect may claim that the UDH is a breach of the implied term of trust and confidence ¹. Or they may terminate their contract of employment and claim that the UDH amounts to an unfair constructive dismissal ² as per 26(1)(c) of the Employment Rights Act 2012.
 
There is no statutory right for an employee to be accompanied by a friend or shop steward at an investigative meeting. However, the employee may be permitted to do so in accordance with their employer’s disciplinary procedure.

---

1. An employer has an implied duty not to conduct itself, without reasonable and proper cause, in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the employer and the employee: Mahmud v BCCI [1997] UKHL 23.

2.  The test for determining whether an employer has committed a fundamental breach of the contract of employment is an objective test and not a “range of reasonable responses” test: Western Excavating (ECC) Ltd v Sharp [1977] EWCA Civ 2. The statutory provision examined in the Sharp case is very similar to section 26(1)(c) of the Employment Rights Act 2012. In order to claim unfair constructive dismissal - an employee must terminate their contract of employment - due to a fundamental breach of that contract. And not for some other reason (e.g. a new job). 

Once an employer has committed such a breach – it cannot "cure" the breach while the employee is considering whether to treat it as a constructive dismissal. The employer can only try to persuade the employee to affirm the contract: see paragraphs 52 - 56 of Buckland v Bournemouth University Higher Education Corporation [2010] EWCA Civ 121 (Also note paragraph 22).

In the case of King v Nassco Finance Ltd, the Tribunal ruled that Mr King had not been constructively dismissed.