Employment Law Update - February 2020 - Vista
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Employment Law Update – February 2020

In this months employment law update we have a whole host of cases which focus on workplace investigations.

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We’ve looked at the case of Uddin v London Borough of Ealing, where an unfair dismissal case made it all the way to the Employment Appeal Tribunal (EAT) and serves to remind us what the role of an investigator is.

The case of Sunshine Hotels v Goddard looks at how important it is to conduct an adequate investigation into a matter, and finally Harrison v Barking, Havering and Redbridge NHS Trust reminds us that knee-jerk suspension decisions can come back to bite an employer.

In the update we also have new information on Equal Pay, where research shines a light on how much work there is still to do, and a practical update on National Minimum Wage and the new Parental Bereavement Leave legislation.

You can sign up to receive the full update below.

Here’s a run down of the cases focused on workplace investigations:

The Role of an Investigator

This month we looked at Uddin v The London Borough of Ealing.

This case was heard by the EAT, where it was considered whether an employee had been unfairly dismissed when the investigating officer failed to inform the dismissing manager that the alleged victim of a sexual assault by the employee had withdrawn her complaint to the police.

The Vista team got together to discuss the matters of the case in this short video.

Unfair Dismissal & Investigations

In Sunshine Hotels v Goddard, the EAT analysed what a reasonable investigation looks like.

An employee was suspended for sleeping on duty. The subsequent investigation involved watching CCTV footage of the hotel.

He was invited to an investigation meeting stating that there would be a disciplinary hearing if there was any substance to the allegations. This meeting turned out to be a disciplinary hearing and the employee was dismissed.

The tribunal decided that this was unfair, because of the lack of a proper investigation. The employer appealed.

The EAT dismissed the appeal. The tribunal’s decision was based on the lack of a proper investigation overall, rather than the lack of an investigation meeting. Whether that investigation took place by way of a meeting or another method was irrelevant, but neither were done in this case.

The employee didn’t know enough about the allegations at the outset of the disciplinary hearing to defend himself properly, not least because he thought he was attending was an investigation rather than a disciplinary hearing.

This case confirms that an investigation meeting is not always required, but an adequate investigation is. Employers must ensure that they gather all the relevant facts before any disciplinary hearing. In cases such as this, where someone is accused of misconduct and offers an explanation, those explanations should be investigated before any disciplinary hearing takes place.

Planning for an Investigation

Doing a little bit of planning before going head on into having investigation conversations will make for a better experience all round.

Here is a helpful technique which you can use in gathering your evidence. Start with establishing exactly what it is that you are looking in to by breaking it down into these bite sized chunks:

  1. Ask yourself what actually happened (this might seem obvious, but with knowledge comes lots of assumptions)
  2. What are the applicable policies or rules?
  3. What surrounding circumstances are relevant?

Doing this will help you to figure out what you are looking into, and with whom. It will also help you to decide what documents you need.

10 to 3 have a great video which takes you through this technique step by step. It kicks off their full suite of videos on managing an investigation. Take a look at them here. 

Suspending an Employee

Many employers automatically suspend an employee accused of misconduct while they investigate the allegations. Many employees don’t object. The employee in Harrison v Barking, Havering and Redbridge NHS Trust did object and brought a claim in the High Court to stop what she said was an unfair suspension.

Suzanne Pipe, Employment Lawyer at Vista talks us through the key aspects employers should consider, and the right time to suspend an employee:

That’s all for this month. Remember, to receive our full employment law update directly to your inbox, sign up below.

See you in March!

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