In Sunshine Hotel v Goddard, the EAT confirmed that there is no legal requirement for employers to carry out a separate investigatory hearing during a disciplinary process.
When an employer carries out a disciplinary process, it should always follow its own policies, but also the Acas Code of Practice. While a failure to follow the Code isn’t unlawful, an employment tribunal will take the Code into account when considering whether or not an employer has acted reasonably.
Paragraph 5 of the Acas Code states: “It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing.”
So, provided the employer acts reasonably in its investigations, an employer doesn’t need to hold an initial investigatory meeting – it only needs to conduct its investigations properly to establish the facts. While nearly all cases will involve some sort of investigation, the amount of investigation required will vary depending on the individual circumstances. The Code stipulates that the more serious the allegation, the more thorough the level of investigation will be required.
The position will of course be different if there is a collective agreement, or a disciplinary policy which requires the employer to hold a separate investigatory meeting. In that situation it may be unfair if the employer fails to comply with its own policy (but not always).
