Harding v Hampshire County Council

Harding v Hampshire County Council

Unfair dismissal: disciplinary investigations

The EAT gives guidance on the tests which must be met for a disciplinary investigation to be considered reasonable.

Mr Harding was employed by the Council as a youth project worker. Serious allegations of misconduct made against Harding regarding his treatment of three boys were passed on to the police. Harding was arrested and interviewed, but later released.

During the police investigation it was alleged that Harding had accessed child pornography sites on a computer that a youth organisation had given him. The council suspended Harding. He was not charged by the police, but they gave the council a copy of the investigatory documents.

Mr Poynter of the council investigated whether there was evidence of gross misconduct by Harding, and referred to the documentation provided by the police and spoke with Harding and the police investigating officer. Poynter’s report was lengthy and detailed. It concluded that there was evidence of gross misconduct, that the matter should be referred to a disciplinary hearing and recommended that Harding’s employment be terminated summarily.

Harding was found guilty of gross misconduct by the disciplinary panel and was summarily dismissed.

Harding claimed unfair dismissal, saying that the council had not carried out a reasonable investigation and had not followed the criteria set out in British Home Stores v Burchill.

The tribunal rejected Harding’s claim.

On appeal, Harding argued that Poynter’s report had the effect of controlling and dictating the outcome of the disciplinary hearing. The EAT disagreed and said Poynter had been entitled to make recommendations in his report before referring the matter to the disciplinary panel; that all of the police papers had been included in the investigation; that Harding could have highlighted any deficiencies in the investigation at the disciplinary hearing and that the disciplinary panel did not follow all of Poynter’s recommendations.

It was also argued that it was wrong for the council not to reinvestigate the matter, but to rely on the investigation carried out by the police. The EAT stated that each case would need to be decided on its own facts.

Key points

Employers are obliged to thoroughly investigate allegations of gross misconduct and to comply with the general principles set out in British Home Stores v Burchill.

Where there are criminal charges against an employee, a ‘careful and conscientious’ investigation must be carried out (A v B [2003] IRLR 503).

Employers will not be required to reinvestigate matters where it is reasonable for them to rely on a thorough police investigation. However, each case must be assessed on its own merits and reinvestigation may be necessary.

What you should do

• Ensure you comply with your own and the statutory disciplinary procedure at all times
  
• Satisfy yourself that, at the time at which you believe that the employee is guilty of misconduct, you have carried out as much investigation as is reasonable
  
• If allegations of a criminal nature are involved, ensure a careful and conscientious investigation is carried out, by the police, the employer or a combination of the two.