Disciplinary issues and reasonable investigations

Q. "We gave a warning to a number of employees for finishing their shift early. One of the employees has appealed the warning and says that it is unreasonable because only a handful of the workforce was given the warning and the shift manager could only identify certain employees and we had no CCTV evidence, although we have no doubt there were others involved."

Keywords: Warnings; CCTV Evidence; Identifying Certain Employees; Reasonable Investigation; Burchell Test; Culture of Organisation

So the first question that comes up, Seamus, came in from one of our listeners.

So, Seamus, does the employee have a point? What is considered the minimum recommended action the investigation manager should have taken in relation to trying to identify the other possible wrongdoers? Finally, does the fact that we could only catch a few in the act mean that we can't take action against any?

Seamus: This is a complicated question. I'll just try and simplify that because I did have an opportunity to read it in advance. We have a basic situation here where there are a large number of employees that all conduct the same act. The problem with the employer is that there's no CCTV footage available and there's only the evidence of the line manager at the time and the line manager can't identify everyone in the group but was able to identify a certain number of people, probably the closest within his eye view at the time.

So we have a situation where the employer is aware that there is more offending employees but doesn't have the evidence in order to bring those allegations to all of the employees, only the handful they're aware of. The first circumstances that we would have to look at is we go back to our basic case law. Any disciplinary matters that I've been involved in, in the tribunal itself, the good old case of Burchell, which is the British Home Stores Ltd v Burchell. We're going back a fair distance here. But this really is the main case for how an investigation should be dealt with.

Burchell gives us three main principles. To shorten them down, it's essentially:

1. Did the employer have a genuine belief in the employees' guilt?
2. Did it have a reasonable ground for that belief?
3. The last one, at the time that it held the belief, had the employer carried out as much of an investigation that was reasonable in the circumstances?

Scott: Reasonable investigation changes from instance to instance.

Seamus: Absolutely.

Scott: This one here assumes that there have only been warnings given. It's not that there are three or four dismissals taking place. So the investigation probably wouldn't be as expensive and not quite as important. I'm not saying you don't have to do it, but it wouldn't be as vital in this case as if you were facing dismissal.

Seamus: We're limited here given the facts of the matter of the amount of investigation that can be done. We're clear that there's no CCTV available. So we've only really got the evidence of the line manager and who that line manager could identify and couldn't identify. We are talking about a reasonable investigation, we're not talking about the level of a police investigation or what a criminal court would look at in terms of being satisfied.

We're talking about a reasonable investigation that any employer would carry out in the circumstances, essentially. The investigation element is important. Although it's not one of the three steps for the statutory dismissal process, Code of Practice in from the LRA is very clear about the investigation. Certainly, I've had cases that we've lost on the basis that the employer did not carry out a sufficient investigation.

Trying to bring that along and develop it because we're dealing with a large number of employees, we had a brief look at the subsequent case law that's happened since then. There's the 1981 case of Monie and Coral Racing, which involved a large number of employees. The Court of Appeal stated in that case that the Burchell principles don't apply when there's more than one suspect involved in the misconduct.

The issue with Coral was that it was all readily identifiable from the evidence, the circumstances of the case. It was clear that it was only those employees that could have committed the misconduct and it was clear that it was this group that it impacted upon.

Scott: They had lots of evidence based on finance. Money had gone out and they knew it could only have been people who worked in that betting shop.

Seamus: Yes, exactly.

Scott: They sacked everybody there.

Seamus: That was it. Yes. We move further along there to the [inaudible 00:06:32] of 1990, which was an Employment Appeal Tribunal case. That's maybe relevant for a question later on in the day, but it essentially set out further guidelines for tribunals to consider, whether these kinds of cases are blanket cases. Essentially, it was weakening the position somewhat from what Burchell had said.

But I think for these particular circumstances that we're dealing within in this case, I would advise caution of issuing a blanket, say that it was a grouping of a certain amount of employees, say it was 30 employees in one particular department. The employer was of the view that the majority of them had done it or certainly it looked to the manager that they were all involved.

I would be very careful about the advice I would give to the employer to issue a blanket outcome in terms of this. I think we really have to strip it back. Bearing in mind Burchell, which is what the tribunal will look at, we'll look at the evidence that we have. It's the unfortunate circumstance in this one that although we suspect that there's more people involved, we only have evidence in relation to a limited number.

Scott: Those three or four can still be disciplined. It doesn't invalidate that they got caught in the act.

Seamus: Yes. I think there's an argument raised of, "Why should I be punished when everybody else that did it isn't being punished?" and you're throwing that out there looking at it from a reasonable standpoint and saying, "Well, we don't have the evidence to support it for everybody else, but we do for you. I think certainly in this circumstance, the employer would be justified in bringing this sanction against the people that it has the evidence against.

Some people might call the other people lucky that they've got away with it if they were involved in it. Certainly, you might get a circumstance where an employee will come forward and say, "Listen, if I'm going down, I'm bringing everybody else down with me and here's a list of people that were involved in it." Again, you're going back to, "Yes, that adds a little bit more evidence, but is it credible evidence? Is the person being vindictive?" I think without admissions from those other people, you're going to struggle to be able to substantiate that you're [inaudible 00:08:40].

Scott: Seamus, there's maybe a longer-term issue that the person who wrote in might want to consider and that's really, I suppose, the culture or the morale within the organisation where a sizeable chunk of employees want to clock off early or lay down tools or whatever that happens to be. There's a motivational issue here.

At Legal-Island, we have a new employee starting at the end of the month. She'll be looking more into those transformative issues when it comes to HR. So, if you'd be interested in doing webinars on those issues, you can drop us a line either on the chat box or scott@legal-island.com, and we'll take those ones up and look at those, but those are not employment law issues. Those are really about engagement with the workforce.

Seamus: Yeah. I think that transforming the workforce is what we're looking at. My only other point, Scott, just in terms that would be, I think that it would be important for the employer, whether bringing all the employees together or issuing a general memorandum to all the employees, it's important that everyone is reminded about whatever the rules are and what they follow and that if it happens again, there will be serious sanction for it just to make it clear for all the employees and it might settle some of the employees that are feeling that they've been hard done by.

Q. In a disciplinary investigation, should the investigator demonstrate that they have reasonably taken . . . what they have reasonably taken into account and have they taken into account every point of defence made by the employee even if they are considered immaterial to the matter at hand?

Keywords: Disciplinary Investigation; Relevance of Information

Scott: For example, the employee references historic events, which have no bearing on the case or they try to cover up things, obfuscate or try to muddy the waters so you have to take it into account.

Seamus: It's really important. The idea behind the investigation process is to make a determination as to whether disciplinary action is warranted. So, there will be allegations that are being dealt with, that are being looked at. It's really important that the investigation focuses on the allegations that have been made. Certainly, the employee might try to explain or mitigate circumstances during the investigations. You take what is relevant specifically to the allegations. What's not relevant, you discard. You don't need to get involved.

Now, sometimes, that can become difficult to do because the employee might say that only happened because of this happening. Certainly, you would have to take that into account and draw your reasoning from what's relevant and not relevant, but certainly investigation processes, you manage them, you bring the person back. The key question to ask anybody during an investigation whenever they go off on a tangent is how is this relevant to the allegations. If they can't answer that question, it's not relevant. Discard it.