Flawed investigation costs employer over £115k

Facts

Ms Griffiths is a social worker and started working for a local authority in 2004. She was diagnosed with anxiety and depression and her managers were aware of this.

In July 2018 during a routine one-to-one meeting, Ms Griffith's line manager told her that colleagues and a service manager had made complaints against her. She wasn't told what she had been accused of, the names of people who had made the allegations, what period they related to, or even if they had been or were being investigated. 

She repeatedly asked for information about the complaints. Her manager initially said she couldn't share information with her ‘yet’, but did later provide her with the names of two families the complaints related to. But, she wasn't given any substantive information about the actual complaints. And, whilst the investigation was ongoing she was told that she needed to change the way in which she worked to improve the relationship she had with the team and some of the families she worked with. 

Around three months later she was given a copy of the investigation report which exonerated her. By this time she was suffering with anxiety, depression and poor sleep. 

In December 2018 she attended a meeting with a manager, her line manager and others to give her the opportunity to review a timeline of what had happened, so that she could see the ‘full picture’. Despite that assurance, Ms Griffiths wasn't shown all of the evidence. 

She became upset and explained that the process had a ‘profound effect’ on her mental health and led to her withdrawing from work, feeling intimidated and had impacted on her working relationships. Ms Griffith's line manager apologised to her and said she didn't know how ‘best to deal the situation and approached it the best way that she could’. The manager intimated that lessons would be learned, but didn't reassure Ms Griffiths that she had no concerns about her practice, which caused her further anxiety.  

Ms Griffiths raised a grievance in February 2019. She said that spurious allegations had been made against her, the investigation was poorly conducted and she had been bullied. Her grievance was investigated but the report, which was produced four months later, set out the findings but didn't say whether Ms Griffith's allegations were upheld or not. Some of her colleagues who had made allegations against her were not interviewed.

Around the time time she received documents she had requested under a DSAR and discovered that the council had conducted an in depth forensic investigation into her practice and had sought feedback on her performance. She believed this demonstrated that the council had already decided she was at fault.

She appealed against the grievance outcome in July and received the report seven months later. The report accepted that the investigation could have been handled better, but rejected her specific complaints. Ms Griffith was dissatisfied with the outcome, particularly as she wanted disciplinary action to be taken against the people who had raised complaints against her which were without foundation and caused her a long period of anxiety. 

Ms Griffiths resigned in February 2020 and brought claims of constructive unfair dismissal and indirect discrimination.

Employment tribunal decision

The tribunal found that the local authority had a PCP of ‘not permitting the subject of the complaint to participate in the investigation’ which put disabled employees at a particular disadvantage when compared to non-disabled persons because ‘it would be likely to cause a deterioration in the mental health of a person disabled with a mental impairment’. The PCP put Ms Griffiths at that disadvantage and it was not a proportionate means of achieving a legitimate aim.

It also upheld her constructive unfair dismissal claim. It found that the sequence of events starting with the flawed investigation amounted to a cumulative breach of contract. This included: failing to tell Ms Griffiths about the nature of the complaints against her, failing to properly deal with her grievance (particularly the delay, not keeping her informed or providing a comprehensive outcome and not taking any sanctions against the people who had complained against her).

The tribunal awarded her uncapped compensation of £115,312.74 which included £25,000 for injury to her feelings. With regard to the latter, it found that the indirect discrimination had a significant detrimental impact on Ms Griffiths, lasted for a considerable period of time and she never fully recovered from it. 

Although the discrimination took place in 2018, it was ‘knitted into the facts leading to [Ms Griffiths] dismissal’ two years later. That meant that the tribunal could compensate Ms Griffiths for her actual losses and didn't have to apply the statutory cap (which in 2020 was £86,444.00).

The council argued that it was wrong to award Ms Griffiths uncapped loss of earnings flowing from a single act of indirect disability discrimination and said her compensation should be subject to the statutory cap. She had not argued that her dismissal was discriminatory and the only dismissal finding was one of constructive dismissal.

Ms Griffith cross-appealed because the tribunal had not awarded her compensation for future loss of earnings or properly considered her pension losses. 

EAT decision

The EAT rejected the council's appeal. It said that the tribunal had properly assessed Ms Griffith's losses which had flowed from the discrimination and it had been entitled to find there was a clear line between the discrimination which took place in 2018 and the constructive dismissal. 

The discrimination had lasted for a considerable period, Ms Griffiths never fully recovered from it and its repercussions continued until she left employment. Her trust and confidence in the council was never restored and her sense of feeling unsafe worsened over time. Taken together, those findings supported the tribunal's conclusion that the primary reason Ms Griffiths had resigned was because she had been excluded from the investigation.

Ms Griffiths succeeded with her appeal and the EAT remitted the case back to the same tribunal to calculate her future loss of earnings and pension losses. Her award will therefore increase.

How to avoid making similar mistakes

It's difficult to understand why an organisation as large as this one got this so badly wrong. So, I dug out the original tribunal judgment which revealed:

• The council didn't have a policy to help managers understand how to handle complaints made internally by staff. That said, Ms Griffith's was essentially being accused of misconduct and/or poor performance and the council must have had a policy dealing with those issues. Why did no-one join the dots?
• The manager undertaking the investigation wasn't given all of the facts about the allegations and instead embarked on a forensic review of Ms Griffith's performance.
• The investigator initially decided not to give Ms Griffiths details of the complaints against her because she felt uncomfortable because the evidence she had was ‘scant’. Even when further information was available, she was told by another manager not to tell Ms Griffiths about it ‘yet’ because she needed to ‘reflect more and learn from feedback’.
• These problems were compounded by the council's reaction to the investigation which exonerated her. The managers who had raised concerns about Ms Griffiths didn't openly accept the findings which added to her distress. The council promised to give her a letter saying they had every confidence in her as a practitioner but this didn't materialise.
• And, the way the council handled her grievance was odd, to say the least. The grievance investigator decided not to tell Ms Griffiths whether she had upheld her complaints and instead set her findings. She erroneously believed this would ‘help [her to] clarify matters’. She also listed behaviours others had made against Ms Griffith without investigating them.  
• Some of these issues were properly dealt with on appeal. Others were not - specifically, the fact that Ms Griffiths' managers had described her in negative terms which had affected her mental health.

In a nutshell, the people who were responsible for dealing with this didn't appear to understand how to investigate complaints or reach legally defensible conclusions.

The problem started with the original investigation and everything snowballed from there. 

It's worth mentioning that the Acas Code of Practice on disciplinary and grievance procedures does not require employers to hold a meeting with the employee to establish the facts of the case during an investigation but it is obviously sensible to do so. A reasonable investigation is the cornerstone of fairness in disciplinary matters and it's difficult for an employer to demonstrate that its investigation is fair if the investigator didn't talk to everyone directly involved and considered evidence that doesn't support the allegations as well as that which does. 

We can help

The council would have avoided this outcome if the managers responsible for investigating the initial complaint and subsequent grievance process had properly understood their role and the legal framework that applied to their decisions. 

Our back to basics training modules are specifically designed for managers. We have one on investigations which:

• Explains how to conduct a legally water-tight investigation
• Provides practical tools and scenarios to work through and apply including: collating information about what has happened, or alleged to have happened; interviewing witnesses; drawing conclusions and making recommendations
• Explains how the investigation feeds into a disciplinary or grievance process
• Explores common problem areas which can inflate issues or cause unnecessary delay; and
• Considers what is the right policy to apply.  

 If you’re interested in any of our modules, please contact Jenny Arrowsmith or Gordon Rodham.  

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