The extension of the SMCR, the fit & proper test and the increasing significance of non-financial misconduct
The case of Hargreaves v Manchester Grammar serves as a useful reminder for employers of how to carry out a reasonable investigation, particularly when the employee in question is facing potentially career changing consequences as a result of the allegations. In this case the Employment Appeal Tribunal decided that it was reasonable for the employer to withhold the evidence of potential witnesses who “had seen nothing” - the Tribunal had been entitled to make this finding and reject the employee’s claim of unfair dismissal.
Mr Hargreaves was employed as an art and design teacher from September 2005 to June 2016 when he was dismissed. He had a clean disciplinary record until an allegation was made by pupil A that Mr Hargreaves had grabbed him, shoved him against the wall and then pushed two forefingers against his throat.
There was an initial investigation by the school’s safeguarding lead, Mr Smith. Mr Smith spoke to pupil A, as well as pupil B who supported what Pupil A had said. Pupil B also named other pupils who had witnessed the incident - OB, EB and GK. Mr Smith spoke to pupil OB but pupil OB had no recollection of anything unusual. Mr Smith decided not to speak to the other two for fear of gossip and speculation.
Mr Hargreaves was suspended from work on 11 March. There was also a police investigation, as part of which Mr Hargreaves was interviewed. Mr Hargreaves’ account was that pupil A was rugby tackling another boy so Mr Hargreaves got hold of him by his rucksack. He denied grabbing pupil A or holding him with his fingers to his throat.
At a meeting on 7 April 2016 involving the police, Mr Smith, the school’s HR and a local authority officer , the police officer summarised the account given by Mr Hargreaves and asked Mr Smith to speak to two members of office staff, Ms Ivory and Ms Balamoody who had been named by Mr Hargreaves as potential witnesses who were in the area at the time. The police informed the school they would not be taking the matter further.
Mr Smith spoke to the witnesses named by Mr Hargreaves. However, Ms Balamoody said she was not in the area at the relevant time and Ms Ivory said she had not seen anything unusual. Pupil OK was also in the area at the time and was spoken to but said they had seen nothing untoward.
At this point the employment investigation commenced in earnest and Mr Hargreaves was invited to an investigation meeting. It was noted in the investigation report that there were essentially two polarised views of the incident – that of Mr Hargreaves and that of pupil A. The investigation report did not include the statements of the three witness who had said they has not seen anything untoward at the time – being Ms Ivory, pupil OB and pupil OK.
Mr Hargreaves was invited to disciplinary hearing and was presented with allegations of (1) unwanted and unreasonable physical conduct, (2) breach of his duties as teacher and the school’s code of conduct and (3) breach of trust and confidence. Mr Hargreaves attended with a trade union representative. He did not make any suggestion that he had not been given all the evidence or statements at this stage or request these three specific witnesses to attend the hearing. Some further enquiries were made following the hearing but it was ultimately decided by the disciplinary panel that on the balance of probabilities the allegations were proven and Mr Hargreaves was summarily dismissed. Mr Hargreaves appealed but this was not upheld.
Mr Hargreaves brought a claim of unfair dismissal.
In order for a dismissal to be fair:
This case centred on the reasonableness of the employer’s investigation. When an employee is facing potentially career threatening allegations then the standard required for an investigation is higher – an employer must carry out an “even-handed, careful enquiry” and an investigator must “focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him” (A v B  IRLR 405 EAT).
At the tribunal, Mr Hargreaves argued that the school’s investigation was not reasonable in the circumstances on the basis that the investigator did not inform Mr Hargreaves or the disciplinary panel of the evidence of Ms Ivory, pupil OB and pupil OK which stated that they had seen nothing. The employment tribunal rejected this argument and found that the school’s decision of who to interview and who not to interview fell within the band of reasonable responses. It was reasonable to not give to Mr Hargreaves or the disciplinary panel the interviews of those who had seen nothing. It did not follow that because they had seen nothing, nothing had happened. The claim for unfair dismissal failed.
Mr Hargreaves was given permission to appeal to the Employment Appeal Tribunal.
The main issue before the Employment Appeal Tribunal was whether the Employment Tribunal had erred in its approach to the school’s failure to disclose the evidence from the three potential witnesses. Mr Hargreaves argued that given the location of the incident, evidence that these witnesses had not seen anything was very relevant. He argued that the evidence of these witnesses having seen nothing was supportive of his account in that had events happened in the way alleged, they would have seen something.
The Employment Appeal Tribunal dismissed the appeal finding that:
This is a potentially useful case for employers in terms of the extent to which they must disclose evidence of people who say did not see anything. However, given the very specific factual background to this case, it remains advisable for employers to ensure the inclusion of all evidence available to them in investigation reports and disciplinary hearing packs. If anything is left out, then it is wise for the investigating manager to document in their investigation report why evidence has not been provided or taken further so that the employer is able to show it carried out a fair and reasonable investigation. It is important that the disciplinary panel or chair is not provided with a misleading or incomplete picture.
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