It is crucial that employers in the motor industry are adept at managing employee relations issues, primarily grievances and disciplinary matters, promptly and fully. Two recent cases have provided useful practical guidance for employers when navigating through complex employee relations cases.
Case one: Disclosure of grievance investigation reports
In University of Dundee v Chakraborty [2022] EAT 150, an investigation into the Claimant's grievance was carried out under the University's 'Dignity at Work Policy', resulting in the preparation of an Investigation Report. This was subsequently amended in light of legal advice but only the revised version was disclosed.
During the Tribunal proceedings, the Claimant applied for the disclosure of the original version of the Report. The University resisted this application, claiming that the original version was protected by 'legal advice privilege', which protects confidential communications between a lawyer and their client for the purpose of giving or receiving advice.
The Employment Tribunal ordered disclosure of the original Investigation Report and this decision was upheld by the Employment Appeal Tribunal (EAT) on the basis that, at the time when the Report was created, neither litigation nor legal advice privilege applied. It was held that the Report was produced in response to a grievance rather than in contemplation of litigation, which would have brought it within the remit of legal advice privilege. The employer's argument that the privilege applied retrospectively was rejected by the EAT.
Key points to note
The general rule is that an internal investigation report produced when dealing with a grievance or disciplinary matter will need to be disclosed in subsequent tribunal proceedings, whether it is produced by an employee or an independent investigator (including those with legal qualifications). If different versions of the report are produced before a final draft is shared with an employee, they may all have to be disclosed later. Consequently, it is important that any significant changes that are made to the original version can be explained and justified.
Case two: The 'vanishing dismissal'
An employee was summarily dismissed for gross misconduct and subsequently appealed this decision in Marangakis v Iceland Foods Limited [2022] EAT 161. Initially she asked to be reinstated but she changed her mind, later seeking an apology and compensation on the basis that the relationship of trust and confidence had completely broken down.
The employer upheld Ms Marangakis's appeal and she was reinstated and issued with a final written warning. Unfortunately, she failed to return to work and therefore she was dismissed as a result. She lodged a claim for unfair dismissal, relying on the grounds of her original dismissal for gross misconduct.
The Employment Tribunal rejected the claim because the original dismissal had 'vanished' when the employee's appeal succeeded. The EAT upheld the Tribunal's decision, holding that when an appeal succeeds, the employee is treated as never having been dismissed (i.e. the dismissal effectively no longer happened). The employee still took part in the appeal process, despite telling her employer that she no longer wanted to be reinstated, and therefore the EAT held that she had not unequivocally withdrawn from this process.
Key points to note
If an employee's appeal against a decision to dismiss them is upheld by the employer, this will 'undo' the original decision. This means that the employee will be treated as though the dismissal never happened. In these circumstances, their continuity of employment is preserved and they will receive their full pay for the period between the original dismissal and their reinstatement.
This case highlights the importance of following the ACAS Code of Practice when conducting a disciplinary procedure. In addition, it is also important to bear in mind that rather than approaching an appeal as a mere formality, it can present employers with an important opportunity to put right any errors or issues that have arisen in the original disciplinary procedure.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.