In this case, the Employment Appeal Tribunal (EAT) upheld an employment tribunal’s decision that the dismissal of two prison officers for gross misconduct was fair. The employer's failure to investigate matters not raised during internal disciplinary proceedings did not make its decision to dismiss unreasonable.
Facts
Mr Andrew and Mr Kerr (the claimants) were employed by the Scottish Prison Service (SPS) as Prisoner Management Officers. On 18 August 2022, they were involved in a physical intervention with a prisoner (“Prisoner X”) during a cell transfer. While no injuries were noted immediately after the incident, Prisoner X was found to have sustained visible injuries the following day and was taken to hospital. He later alleged that he had been assaulted by staff.
An internal investigation was conducted, including interviews with the claimants, medical staff, and Prisoner X himself. The investigation concluded that the injuries were inconsistent with the claimants' accounts and the initial forms they had completed regarding their use of force. Both claimants were dismissed for gross misconduct in March 2023. Their internal appeals were unsuccessful.
The claimants then brought unfair dismissal claims in the employment tribunal. They argued that the investigation conducted by SPS was inadequate because SPS had not investigated matters such as Prisoner X’s potential intoxication, his motive to lie, and the absence of a medical report. The tribunal dismissed their claims, finding that SPS had conducted a reasonable investigation. It stated that the above matters, which the claimants had not put forward in the internal disciplinary proceedings, could not be material to the reasonableness of the employer's decision to dismiss. It alluded that to consider them would have been akin to substituting its decision for that of SPS.
On appeal, the claimants argued that the tribunal had wrongly failed to consider whether it was reasonable for the employer not to investigate the above matters. They also argued that the tribunal’s factual findings were perverse.
The EAT rejected both grounds of appeal, holding that the tribunal had correctly applied the legal principle. It was for the tribunal to consider the reasonableness of the of the investigation in the particular circumstances of the case. The investigation should be assessed holistically. As part of the process of investigation, the employer must of course consider any defences advanced by the employee, but whether and to what extent it is necessary to carry out specific inquiry into them will depend on the circumstances as a whole. The tribunal in this case was entitled to assess the investigation as a whole and to conclude that the employer’s decision to limit the scope of the investigation fell within the range of reasonable responses.
What does this mean for employers?
This case provides a useful reminder of the scope of an employer's duty to investigate alleged misconduct. It reinforces the principle that employers are not necessarily required to investigate every possible line of defence that could be raised by an employee, particularly if those defences were not put forward during the disciplinary process. However, employers should still ensure that their investigations are thorough and well-documented. When assessing the fairness of an employee's dismissal, the tribunal will consider the investigation as a whole to assess whether the employer acted reasonably in the circumstances.
Where employees are given the opportunity to raise concerns or mitigating factors (and especially where they have the benefit of union representation), tribunals are likely to give greater weight to what was actually raised during the internal process than to hypothetical arguments raised after the event.
