A Close Call On Reversed Charges

It has long been established that an employer must investigate charges of misconduct against its employees properly and allow them a reasonable opportunity to respond to those allegations before any final disciplinary decision is made. Traditionally this has included giving the employee a right to challenge the evidence of his "accuser" in the course of the disciplinary process. The Employment Appeal Tribunal (EAT) has recently considered in British Telecommunications plc –v- Everitt how far this is necessary where the misconduct in question is actually admitted.

Following an investigation by his line manager, Mr Everitt was accused of falsifying certain timesheets. During the investigatory process he admitted this offence. In the subsequent disciplinary proceedings he made his own allegations back against the line manager, claiming that he was acting maliciously and unfairly towards Mr Everitt in monitoring only his timesheets and not those of his colleagues. Despite this contention, Mr Everitt was not given an opportunity to question the line manager during the disciplinary process. The BT disciplinary committee (which did not include the line manager) decided that Mr Everitt should be dismissed for the timesheet falsification.

The Employment Tribunal found his dismissal fair, but on appeal to the EAT Mr Everitt complained in particular that this was not so because he had not been allowed to question the line manager. The issue for the EAT was therefore whether an employee should always have the opportunity to confront his accuser.

The EAT made it clear that in most circumstances this question would have to be answered "yes". The distinguishing factor here was that Mr Everitt had freely admitted the misconduct in question. The issue of by what motives on the part of the investigating manager the misconduct had come to light in the first place was correspondingly less important. The EAT took the view that allowing Mr Everitt to cross-examine the line manager would not have got him anywhere, as he had already admitted the truth of the allegations against him. However, BT were still fortunate to win. Though the EAT could not find the error of law in the Employment Tribunal’s reasoning which would be necessary to overturn its decision, they did say that they viewed as "bad employment relations practice" the failure by an employer to investigate reciprocal charges of bad faith or other misconduct made by an employee when his dismissal is being considered.

The Everitt decision should certainly not be taken as meaning that as soon as the employee admits an act of misconduct, the accuser’s motives always become irrelevant. For example, if the investigating line manager had also been part of the disciplinary committee deciding whether or not to dismiss Mr Everitt, then the question of his motives towards Mr Everitt would clearly be relevant. Similarly, suppose that Mr Everitt’s defence had been that the line manager had previously encouraged such behaviour, or at least turned a blind eye to it. That would mean that the misconduct, though perhaps admitted, could not properly be seen as serious enough to justify his dismissal. Clearly then there would be questions for the line manager to answer before a dismissal decision could be reached fairly. Alternatively, if it were alleged by an employee that an enquiry into his conduct alone had been made on the grounds of his race, sex or disability, that charge would require the disciplinary committee to consider the accuser’s motives.

Mr Everitt did allege that many of his colleagues were guilty of the same offence but that they were not having their timesheets monitored by the line manager in question. If he had been able to produce any evidence of this (which he was not) the EAT thought that BT would have been "duty bound" to investigate it. This was the case even though a discovery that the falsification of timesheets was widespread would not necessarily have excused Mr Everitt’s conduct or prevented his dismissal.

It would also be desirable for an employer to have the investigating officer available if there is likely to be any later debate as to whether the misconduct was genuinely admitted in full. If it transpires that the employee has admitted only part of it and has not had the opportunity to confront his accuser in relation to the remainder, then a decision by the employer to dismiss on the basis of all the charges (rather than merely those admitted) will probably be unfair.

Even if we assume that in most cases the investigating officer is not acting on the basis of improper or unlawful motives, the safe course for an employer must be to allow the employee access to his accuser in the course of the disciplinary process, even though the misconduct in question may have been admitted. If this adds nothing to the disciplinary investigation, then so be it. It does however take away from the employee the strength of any argument that his admission could not be taken at face value. Even though BT were ultimately successful, there is no need to take the same risks of a finding of procedural unfairness as they took in this case.

One side issue to consider briefly here is whether a disciplinary committee needs to consider the motives of the employee in making his admission. In British Gas –v- McCarrick in 1991 an employee pleaded guilty to criminal charges of theft from his employer. At the subsequent internal British Gas disciplinary hearing Mr McCarrick contended that despite that guilty plea, he was actually innocent of the theft. He had pleaded guilty on the advice of his lawyer, he said, merely to avoid a prison sentence for the offence. The EAT took the view that British Gas were not obliged to investigate the guilty plea further nor in particular (as Mr McCarrick had claimed) to interview the lawyer in question. It will be very rare indeed that an employer is not entitled to rely on the employee’s own admission – perhaps only cases where the employee is known to be mentally unstable or where there is compelling evidence that he/she is covering up for someone else.

STOP PRESS

The European Commission has proposed two draft anti-discrimination directives. The first directive prohibits discrimination in employment on the grounds of racial or ethnic origin, religion or belief, disability, age or sexual orientation. The second draft directive prohibits discrimination on ethnic or racial grounds in a wider range of areas such as education and the provision of goods and services.