Investigation reports get your facts straight

Dentons

In this article, we focus on investigation reports in disciplinary matters, and the lessons investigators can learn from the latest decision of the Employment Appeal Tribunal (EAT) in the case of Dr J Dronsfield v. The University of Reading. In particular, on what should investigators focus when writing their investigation report? The answer, it appears, is facts and only facts.

Dr Dronsfield was an academic employed by the University of Reading as a fine art lecturer until he was dismissed following a disciplinary process. He was dismissed under the university's disciplinary guidelines for behaviour of an "immoral, scandalous or disgraceful nature incompatible with the duties of the office or employment". The disciplinary charges, which eventually led to his dismissal, involved allegations of unsavoury behaviour at an exhibition after-party, of evening meetings with students involving alcohol, and allegations that the claimant had a sexual relationship with one of his students, whose dissertation he later marked. He was also involved in that student's academic supervision and had failed to report his actions to the university.

Due to its scandalous nature, the facts surrounding the case were reported in a number of national newspapers. As a short aside, this case serves as a reminder that tribunal cases are public knowledge and, as a result, reputational damage can arise for both employer and the employee bringing a claim.

Following his dismissal, Dr Dronsfield brought a claim on the basis that amendments to the investigation report rendered his dismissal procedurally unfair. His main complaint was that the investigators took advice from the university's in-house lawyer and, as a result, had removed parts of the draft investigation report that expressed opinion and reached the conclusion that Dr Dronsfield had not acted in an immoral, scandalous or disgraceful nature. However, the Employment Tribunal (ET) found that the dismissal had been fair. Although the investigation report had been amended, the ET held that it fairly set out the investigators’ position and the amendments did not mean that it represented a false or incomplete position. Dr Dronsfield appealed, the EAT found that the first ET had erred in two respects and remitted the case for a complete rehearing to a fresh tribunal. The fresh tribunal also found that the dismissal had been fair, since the report accurately represented the facts and it was reasonable for the investigators to rely on the advice of their solicitors and to omit any "evaluative opinion" in the report.

The latest judgment, reported last week, was Dr Dronsfield's appeal to the EAT against the decision of the fresh tribunal. This appeal was dismissed. The removal of evaluative conclusions from the investigation report did not mean the dismissal was unfair and there was no suggestion of impropriety in the way the investigation was handled.

Although the tribunal on this occasion found that the amendment to the investigation report did not lead to Dr Dronsfield's dismissal being unfair, investigators must be careful, when seeking advice, that such advice does not mean that the report is no longer a product of their investigations. The key point, however, is that an investigator's focus should only be on the facts. 

Key tips for investigators drafting investigation reports

  • All findings should be recorded in writing and all evidence collected by the investigator should be adequately summarised in the report. Excluding information may leave it open for the employee to make claims of bias. It may also appear as if the investigator is filtering evidence to fit their findings.
  • Investigators should establish the facts of the matter and must never give an opinion on what the outcome decision should be. Many of the issues raised in the Dronsfield case came from the fact that the investigators had included opinion in the original investigation report.
  • Where the evidence of the facts that are being investigated is contradictory or contested, an investigator should decide which version of the facts they prefer on the balance of probabilities and explain in their report why they reached that conclusion.
  • The investigation report should be a product of the investigator. The report should reflect the investigator's own conclusions on the facts and not the conclusions of anyone else from whom they have sought advice during their investigation.
  • If an investigator is asked to make a recommendation at the end of their report, they should only say whether they consider that further action is necessary or beneficial. They should not suggest a possible sanction for the employee.

Finally, employers should remember that not all disciplinary investigations will or should lead to a disciplinary hearing. The outcome of a report, when more information is available, is a good time for a reassessment of the position and the employer may wish to consider if a different and informal approach with the employee might be preferable.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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