When an employee is subject to a disciplinary investigation your process must be fair and reasonable. Providing the content is wholly relevant to the matter under investigation, a disciplinary investigation report can’t be too detailed. However, if something’s mentioned and it shouldn’t be in there, e.g. unrelated prejudicial material or a recommendation on disciplinary sanction, it’s likely to render a dismissal unfair.
Overzealous action such as going through everything with a fine toothcomb can mean that you sometimes have far more information than you need. This was an issue for the Employment Appeal Tribunal in the case of NHS 24 v Pillar 2017. Pillar claimed unfair dismissal and argued that when NHS 24 had prepared the disciplinary investigation report, whereby the manager had included two previous failures from 2010 and 2012. Pillar was given training at the time for the failures, but no disciplinary action was taken.
The tribunal agreed that NHS 24 was entitled to treat the 2013 incident as gross misconduct. Nevertheless, it held that Pillar’s dismissal was unfair as it was unreasonable to include full details of the two earlier incidents. The tribunal found that when considering whether a disciplinary investigation is reasonable, the focus should be in the sufficiency of the investigation. Generally speaking, where the content is relevant, a disciplinary investigation report cannot be too detailed.
We say the problem arises where things make their way into a disciplinary investigation report that simply shouldn’t be there. For example, this could be prejudicial material that has no relevance to the matter that’s being investigated or if the investigator makes recommendations on potential disciplinary sanctions. This will be too much information and its inclusion is likely to render any subsequent dismissal unfair.