Internal investigations - ensuring a fair approach
Solicitor, Veale Wasbrough Vizards
A recent Employment Appeal Tribunal (EAT) case has highlighted a number of considerations for employers carrying out internal investigations.
In CP Regents Park Two Ltd v Ilyas, Mr Ilyas was a receptionist for CP Regents Park Two Ltd (CP) at one of their hotels. Out of the pool of receptionists, only Mr Ilyas and another employee, Mr Ahmed, were of Pakistani origin. Mr Ahmed was dismissed by the CP for misappropriating company money and subsequent investigatory meetings were held with CP's other receptionists to determine the extent of their involvement, if any.
During his investigatory meeting, Mr Ilyas was accused of colluding with Mr Ahmed and questioned about whether he knew him in Pakistan. The other investigation meetings were not as aggressive and no comments about nationality/race were made to the other receptionists. Following the investigatory meetings, CP initiated disciplinary proceedings against Mr Ilyas alone and he was subsequently dismissed.
Mr Ilyas brought claims for unfair dismissal and race discrimination. The EAT found that the manner of the investigation meeting had been discriminatory. CP's investigating officer had, at the outset of the process, made a judgment about a connection between Mr Ilyas and Mr Ahmed based on their ethnicity and inappropriately questioned him.
Interestingly, however, the EAT held that CP did not discriminate in taking Mr Ilyas alone to a disciplinary hearing. Despite the discriminatory nature of the investigatory interview he was the only receptionist who was implicated in the misappropriation of funds. The original Employment Tribunal had held that Mr Ilyas' dismissal was fair.
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This case highlights the approach that an investigating officer should take, including ensuring that questioning is consistent between different employees and avoiding any harassment, bullying or other discriminatory treatment during interviews. This is true even where there may be enough evidence to fairly dismiss a particular employee at the end of the disciplinary process.
Investigating officers should not enter an interview with any preconceptions about the outcome or the individual involved. The investigating officer should restrict questioning to issues relevant to the allegations being made and the evidence available at the time.
As always, we strongly advise employers to keep written records of interviews which can then be produced to defend any allegations of discrimination.