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.
UK: A Close Call On Reversed Charges
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Contributor
Authors
More Popular Related Articles on from UK
Withers LLP
Interest in cryptocurrencies has grown significantly since the inception of bitcoin in 2009. Cryptocurrencies are widely regarded as the next evolution in financial services technology.
Brodies LLP
This guide explains what a DPIA is and when they should be used.
Reed Smith (Worldwide)
The initial coin offerings regulatory map has begun to take shape with the SEC, the CSA, the UK's Financial Conduct Authority, Singapore, Hong Kong, China and Australia offering their opinions on ICOs.
Dentons
At the contract formation stage, leaving key issues for future negotiation may mean you only have an agreement to agree rather than an enforceable commitment.
Brodies LLP
The impact of Brexit upon personal taxation is and will remain unclear for some time, but we have identified areas upon which a watchful eye will be required.
Bircham Dyson Bell LLP
A series of changes to the taxation of individuals who resident in the UK but domiciled outside the UK, so called resident non-doms (RNDs) which came into force from 6 April 2017...
Pinsent Masons LLP
Businesses seeking to offer and sell digital assets to investors as a means of raising capital face tighter regulation in light of recent announcements made by regulators based around the world.
Clyde & Co
In Dawnus Construction Holdings Ltd v Marsh Life Ltd [2017] EWHC 1066 (TCC), the Claimant (Contractor) brought enforcement proceedings against the Employer (Defendant), in relation to an adjudication...
In association with
Mondaq Advice Centre (MACs)
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
