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Employment Law Case Update: Full and Fair Investigation

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Carrying out investigations into allegations of misconduct against an employee is unfortunately part of most employer's routines.  The case of Leigh Andrews v St Mungo’s Community Housing Association is a good example how the past can come back to haunt you, and why carrying out these investigations in a full and fair way is of critical importance to protect your business in the future.

Ms Andrews worked for Broadway Homelessness and Support (which later merged with St Mungo’s) from September 2002 until May 2004, handing in her notice in April 2004 to begin a new job at Oldham Borough Metropolitan Council.

Shortly after handing in her notice, she was called into a meeting and informed that bullying allegations had been made against her by her line manager, Ms Tudor. These included an accusation of “cold shouldering” and “snide comments.” She was told a preliminary investigation had been conducted and a decision was later made to not continue with the matter. Ms Andrews was surprised and concerned that she knew nothing of the matter until the company informed her that it was closing its investigation, giving her no opportunity to answer the allegations. Concerned that these allegations would cause future problems for her, as she planned to stay in the same sector, she asked that a disciplinary hearing be held “to determine the matters.”

Not long after leaving Broadway, Ms Andrews discovered that a male colleague had been paid more than her for work she considered to be of equal value. She began ET proceedings but ultimately decided not to proceed because of the “financial risk of pursuing the matter to Tribunal.”

She returned to work for St Mungo’s (which by then had merged with Broadway) from July 2017 to June 2018 as a freelance consultant. In May 2018, she applied for and was accepted to St Mungo’s bank of locum workers. Her request to be considered for management positions was passed to the Executive Director of HR, and another colleague who had worked at Broadway at the same time as Ms Andrews previously, both transferring to St Mungo’s under TUPE.

In June 2018, Ms Andrews was informed that St Mungo’s was withdrawing the offer of locum work, citing “information [which] has subsequently come to light surrounding your employment at Broadway.” On further enquiry, she was informed the company would not engage with her due to her being subject to previous disciplinary action.

Ms Andrews then brought a claim to the ET on the grounds of victimisation.

The ET considered whether the decision not to employ Ms Andrews was due her previously lodging an equal pay complaint, or whether it was based on the previous employee’s recollection of the bullying allegations.

The ET found that Ms Andrews had been victimised; the decision not to employ her was at least partly based on her earlier pay proceedings. The ET rejected the explanation that the decision was made because of the HR Director’s vivid recollection of “serious and credible” bullying accusations, finding that the recollection of the allegations as “extreme” was an exaggeration.

The ET also found that previous colleagues had input into the decision not to rehire and that on the balance of probabilities, it is “likely that they discussed the earlier equal pay proceedings and that this formed at least part of their reason for revoking the offer”.

The ET ordered St Mungo’s to pay £17,527.00 to Ms Andrews.

This case shows how an employer cannot rely on past allegations of misconduct to justify a decision without a full and fair investigation into the truth of the allegations. It also demonstrates why employers should be careful to make sure their decisions are not influenced by an employee’s past protected acts. 

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

This was previously part of our weekly Employment Law Newsletter. If you would like to subscribe, please email us at events@warnergoodman.co.uk or just fill in our subscription form.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.