Last week we looked at redundancy and suitable alternative employment. This case concerns constructive dismissal and disciplinary procedures. The question this week is below, but really the case is a what-not-to-do during disciplinary investigations!

Can an unreasonable disciplinary investigation amount to a breach of the implied term of trust and confidence?

Retirement Security Ltd, the Respondent, operated elderly housing apartment complexes. Ms Wilson, the Claimant, was a Court Manager at one of the Respondent’s apartment courts. The court had 42 apartments.

The Claimant managed a team of duty managers, three of her subordinates raised a formal complaint about her conduct. The Claimant received a letter asking her to attend an investigation meeting in relation to nine allegations of misconduct including resident safety, theft, insubordination and breach of confidentiality. Due to a postal error, the Claimant did not receive the letter until 24 hours before the meeting.

The Claimant was not sent statements of the Duty Managers, whose complaints formed the allegations and raised concerns that the allegations were too vague to respond to. The investigating officer had also already made a finding that there was no evidence to support some of the allegations, including the one for theft. The investigation report was not disclosed.

At the hearing, the investigating officer made reference to a document which supported the allegation of owner/resident safety. However, the Claimant was not given the opportunity to review this document. During the meeting, the Claimant’s line manager, whom the complaints were addressed to, initially presented herself as the Claimant’s companion. She was then referred to as assisting both parties. Mid-way through the meeting she became the chairperson and before the meeting ended left due to a conflict of interest.

Before the meeting ended, the Claimant was purportedly asked if she wished to resign in order to obtain a favourable reference. The Claimant felt that she had been ambushed, that any disciplinary decision was pre-determined and promptly resigned.

The Claimant brought a claim for unfair constructive dismissal. She cited the nature of the investigation meeting as a repudiatory breach of the implied term of trust and confidence. The ET allowed the claim, it held that the nature of the allegations, the lack of evidence provided and shifting roles of the participants meant the meeting was a substantive breach and the Claimant had resigned because of this.

The Respondent appealed. It argued the ET had not considered a fair reason for dismissal and that the ET had muddled the requirements of a disciplinary hearing onto an investigation hearing. The EAT dismissed the appeal. It held that no fair reason for dismissal was argued in the defence, and, in any event, none was obvious on the evidence gathered by the Respondent. The EAT also held that the ET was right to treat the meeting as it did due to the evidence it had heard about how the meeting was conducted.

The takeaway point:

Yes, such an obviously flawed investigation meeting can amount to a breach of the implied term trust and confidence. The Respondent admitted during the hearing that the meeting was an ambush and included allegations they knew to be unsubstantiated.

Another issue here is kitchen sink disciplinaries. If there were genuine concerns of misconduct, it is always best to limit the disciplinary action to those allegations rather than a general throwing of mud that can appear as a bullying tactic and also weakens the genuine issues. It is akin to sweetcorn and bowel movements: the sweetcorn has preserved its integrity but it is still surrounded by s***! Most employment judges would rather just see the sweetcorn!