UK: Truth Be Told – Credibility Findings Required Appeal But Not Investigation

Last Updated: 30 April 2019
Article by Stefan Martin and Ed Bowyer

In most disciplinary situations it will be part of a fair process for an employer to carry out an investigation into suspected misconduct before deciding to take disciplinary action. However, the decision in Radia v Jefferies International Ltd illustrates that this will not inevitably be the case. Failing to offer an appeal hearing will often be fatal to fairness though.

Mr Radia was employed in a financial services role and had to be assessed as fit and proper to carry out his duties. When he brought a disability discrimination claim against his employer the tribunal found that his evidence was evasive or "not credible in many respects". Those findings led the employer to take disciplinary proceedings against him on the basis that he had acted dishonestly and was not a fit and proper person to perform his role.

The employer did not conduct an investigation into the allegations, but proceeded directly to a disciplinary hearing on the basis of the tribunal's findings. Although the employee argued that his evidence before the tribunal had been misunderstood, the employer concluded that he had committed gross misconduct that was incompatible with his continued employment in a regulated position. The employee unsuccessfully appealed against the decision in writing, but there was no appeal hearing. His unfair dismissal claim failed. In the circumstances the employer was not required to conduct an investigation and although it was "wholly irregular" not to have offered an appeal hearing, in the tribunal's view this was one of the rare cases in which a hearing would have made no difference to the outcome.

The employee appealed, arguing that it was not reasonable for the employer to have relied on the findings of the first tribunal without conducting its own investigation and that the second tribunal was wrong to have found that an appeal hearing would have been futile. The EAT dismissed the appeal in relation to the investigation. It was open to the second tribunal to find that the employer had acted reasonably by treating the first tribunal's findings as a starting point for disciplinary action without further investigation. The employee knew that the employer was accusing him of dishonesty and had an opportunity to challenge the employer's categorisation of the tribunal's findings but had chosen not to do so. However, the second tribunal was in error when it decided that the failure to hold an appeal hearing was fair. The correct question was whether the employer had concluded that holding an appeal would have been futile. Instead, the second tribunal had reached its own conclusion on that point. This was not the right approach, so the employee's appeal on that point succeeded.

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