UK: Misconduct dismissals

Mr Dronsfield, an academic, was dismissed following a number of allegations including an undisclosed sexual relationship with a student. His employer had issued detailed guidance on relationships between staff and students which Mr Dronsfield was expected to follow. However, he could only be dismissed for conduct of an “immoral, scandalous or disgraceful nature incompatible with the duties of the office or employment.”

Mr Dronsfield claimed that his dismissal was unfair after the investigators included some findings that were in his favour in an early version of the investigation report, but removed them from the final version of the report on the advice of an in-house lawyer. This included the investigators’ opinion that there was no evidence that the employee’s conduct was of an immoral, scandalous or disgraceful nature. The Tribunal accepted that the reason the comments were removed was to ensure that the focus of the investigation report was on the facts of the case and that the job of drawing conclusions from those facts was left to the disciplinary panel.

The EAT confirmed that the fact that the draft investigation report had been amended in this way did not make the subsequent dismissal unfair. No undue pressure had been put on the investigators to change the report nor had any evidence been withheld. It was appropriate for the in-house lawyer to advise that the investigation report should be restricted to factual findings and a conclusion as to whether there was a disciplinary case to answer, and the investigators had simply accepted that advice. It was for the disciplinary panel to decide whether the employee was in fact guilty of misconduct under the employer’s rules.

Practical point

This decision is a useful reminder of the limits of the investigator’s role. It also provides helpful clarification that if a draft investigation report is altered on the recommendation of an internal or external solicitor for an appropriate reason – the dismissal may still be fair if the employer has a fair reason to dismiss and follows a fair process.

However, if the lawyer or HR becomes so involved in the investigation that an investigatory report can no longer be said to be the product of the investigator, then there would be a risk that a subsequent dismissal may be found to be unfair.

For a detailed update on this decision, see Tips for HR and in-house lawyers dealing with investigations into potential misconduct  https://www.clydeco.com/blog/the-hive/article/tips-for-hr-and-in-house-lawyers-dealing-with-investigations-into-potential

Dronsfield v The University of Reading 

https://www.bailii.org/uk/cases/UKEAT/2019/0255_18_0210.html