While the law is an ever-developing beast, there are also legal tenets that have been in place for decades. These are often referred to as ‘tests’, meaning standards that are applied by judges when making decisions in the Employment Tribunal (ET).
Perhaps one of the most commonly-applied of these in the employment sphere is the Burchell test, which took its name from the 1978 case of BHS v Burchell, and is the test used to determine whether a dismissal for conduct reasons was fair. In short, the Burchell test requires an employer to show that:
- It had a genuine belief that the employee was guilty of misconduct.
- It had reasonable grounds upon which to sustain that belief.
- At the time of forming that belief on those grounds, it had carried out as much investigation into the matter as was reasonable in the circumstances.
Point 3 essentially requires an employer to carry out a reasonable investigation into the issue before taking formal action for misconduct, and it was the failure to do so that landed LBC in trouble in this case.
The facts of the case
Mr Thornhill was employed by LBC from July 1980 until his dismissal in September 2017, with his role at dismissal being Street Lighting and Drainage Manager.
In 2015 Mr Thornhill became involved in a tender exercise for new street lighting. While he had some experience of selecting contractors to submit tenders, he had no training in tendering or experience in evaluating tenders, or indeed experience of a tender as large as the one that took place in 2015.
Around the same time, Mr Thornhill’s son was involved in a serious accident, resulting in him requiring significant hospital treatment, including the amputation of part of his leg. Mr Thornhill therefore asked to be excused from the process as his ability to concentrate was impeded. However, his request was denied.
Issues arose during the tender process, and in October 2015 Mr Thornhill was given pricing information from the incumbent contractor (VH). He queried the appropriateness of being given that information, but was told that it was not a problem provided that he did not share it. As a result of receiving the information, the tender document was changed.
In November 2015 Mr Thornhill was given further information from VH, and was asked to review the quantities of street lighting to match LBC’s budget. Mr Thornhill reviewed the information and asked to delete it, as he believed that another contractor (FMC) had access to certain documents on Outlook.
The contractors submitted final tenders in November 2015, with VH having the advantage of the amended tender. VH was then awarded the tender, which resulted in FMC raising legal action and being given a six-figure settlement.
As part of that process, Mr Thornhill attended a group meeting and had a subsequent phone call with someone in LBC’s legal team, but did not see the notes from those discussions.
An LBC employee, Mr Cross, was then asked to undertake an investigation into the matter, which focused on Mr Thornhill.
However, Mr Thornhill was told that the investigation was to identify what had gone wrong with the tender process and not that he himself was being investigated for fraud or corruption. Mr Cross also admitted in the ET that he did not tell Mr Thornhill that he was being investigated for failing to disclose receipt of the tender information from VH. Mr Thornhill then had a period of absence due to PTSD, and Mr Cross did not meet with him again.
Mr Cross met with around five other employees as part of the investigation, but could provide only one set of notes. When Mr Thornhill received the investigation report, the notes were not given to him. When he requested further notes, he was given statements that were so heavily redacted that the judge referred to them as ‘useless’.
A disciplinary hearing against Mr Thornhill was then convened, and chaired by Ms Conners. Ms Conners relied solely on the investigation carried out by Mr Cross and conducted no further investigation of her own. Mr Thornhill was later summarily dismissed and his appeal against that dismissal was rejected.
The ET’s decision
The ET was damning of the investigation process conducted by LBC. It noted in particular that, the more serious the allegations against an employee, the more rigorous the investigation should be in order to be reasonable (and meet point 3 above). The judge also pointed out that an investigation should be even-handed, with evidence being sought that could establish innocence as much as guilt.
In finding that the investigation was ‘seriously flawed’, the ET noted that:
- It was never made clear to Mr Thornhill that he was being investigated for dishonesty or fraud.
- Mr Cross’ investigation had terms of reference that were not provided to the ET.
- Mr Thornhill was not shown his statement or the statements of others.
- The statements that were provided (after a subject access request) were heavily redacted ‘to such an extent as to be meaningless’.
- It was not clear that Mr Thornhill’s colleagues were questioned on issues to support his dismissal.
- No consideration was given as to the effect of Mr Thornhill’s son’s accident, or the email from him asking not to be part of the tender process.
- There was no investigation by Ms Conners, who reviewed only Mr Cross’ report.
- Mr Thornhill’s wife queried the accuracy of Mr Cross’ report but no further investigation took place.
- Mr Thornhill had 37 years’ service and a clean disciplinary record, and an employer the size of LBC, with its admin resources, should have gone further before dismissing Mr Thornhill.
As a result, the ET found the dismissal unfair, and Mr Thornhill was both given his job back and awarded over £100,000 in compensation.
What does this mean?
Quite clearly, LBC’s investigation was inadequate from start to finish, and had it been otherwise Mr Thornhill would most likely not have been dismissed.
The case is therefore not new law, but a sharp reminder of the need for a robust and balanced investigation in order to avoid an expensive unfair dismissal claim.
The good news for our readers is that Navigator has a range of services that can assist with investigations such as these.
We are delivering a half-day seminar on 23 October 2019 on how to conduct investigations, which will explain the legal framework and core principles of investigations, how to conduct meetings and what to ask, drafting investigation reports and making recommendations, and outline tricky areas and how to overcome them.
We can also take the reins to conduct an on-site investigation for you, into issues such as bullying, theft, social media issues and dysfunctional teams. Our team of specialists have experience of investigating all manner of issues, from small grievances to complicated disciplinary issues, and will ensure that the matter is handled quickly, comprehensively and with the utmost discretion and integrity.
If you would like to attend the training session in October, or if you would like to know more about our investigations service, please contact Stephanie Harper.