Veitch Penny LLP - Exeter | Crediton, Devon

Case

Harding –v- Hampshire County Council
Employment Appeal Tribunal - (10 May 2005)

Issues

1) Disciplinary procedure;
2) Reasonableness;
3) Gross Misconduct.

Facts

Mr Harding had been employed by the Council as a Youth Project Worker. Serious allegations of misconduct were made against him in connection with his treatment of three boys. These allegations were passed to the police and Mr Harding was arrested, interviewed and released. After a police investigation, the Crown Prosecution Service decided that there was insufficient evidence to convict him and no prosecution was brought.

Mr Poynter, the Youth Service Manager for the Council conducted an investigation to determine whether there was evidence of gross misconduct. He obtained copies of the police papers and, 6 months later after numerous unsuccessful attempts to meet with Mr Harding, a report was completed. His report concluded that, on the balance of probabilities, the allegations were proven. He recommended that the matter should be referred to a disciplinary hearing and indicated his view that Mr Harding’s employment should be terminated summarily. Mr Harding was then found guilty of gross misconduct by the disciplinary panel and was dismissed.

Initially, Mr Harding was unsuccessful at the Tribunal and he appealed the decision to the Employment Appeal Tribunal (EAT). Mr Harding argued that the report had the effect of controlling and dictating the outcome of the disciplinary hearing. He also argued that it was wrong for the Council not to re-investigate the matter, instead deciding to rely on the investigation carried out by the Police.

Decision

Mr Harding was unsuccessful in his appeal. The EAT was satisfied that the Council had made all enquiries that a reasonable employer would have made. It stressed that the facts of the case were unique and was of the view that Mr Poynter had been entitled to make recommendations in his report referring the matter to the disciplinary panel. It noted that the report was a lengthy and detailed review of the circumstances and that all of the police papers had been included. Mr Harding could have highlighted any deficiencies in the investigation during the disciplinary process. It also noted that the disciplinary panel did not follow all of Mr Poynter’s recommendations.

Comments

This case reaffirms the obligation upon employers to thoroughly investigate allegations of gross misconduct to comply with the principles set out in the case of British Home Stores –v- Burchill. Employers will not be required to re-investigate matters where it is reasonable for them to rely on a thorough police investigation but care must be taken to ensure that each situation is assessed on its own merits. Re-investigation may well be necessary. By way of good practice, employers should ensure they comply with their own disciplinary procedure at all times and to be satisfied that when reaching a decision of gross misconduct, as much investigation as is reasonable has been carried out. To this end, all staff who may be able to provide information should be interviewed and a note of their evidence kept. A note of all the information obtained from the police must be recorded and a request made for a copy of their report and evidence (although this may not be forthcoming).

Rachel Billen – Associate Solicitor, Commercial Department at Veitch Penny.
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