When deciding claims of unfair dismissal on grounds of misconduct, tribunals have to consider whether the employer believed the employee was guilty; whether they had reasonable grounds for that belief; and whether they carried out a reasonable investigation. In Yeung v Capstone Care Ltd, the Employment Appeal Tribunal (EAT) held that a failure on the part of the employer to give new material to a claimant does not necessarily render the procedure unfair.
Basic facts
In December 2011 a colleague claimed that Ms Yeung (a carer in a home for vulnerable adults) had been verbally and physically abusive to a resident. During the investigation, other members of staff said they had had concerns about similar incidents involving Ms Yeung in the past. She was suspended and invited to a disciplinary hearing on 14 December to which she did not turn up. It was re-arranged for 19 December but she did not turn up again and was dismissed for gross misconduct.
At her appeal hearing she raised a number of matters which prompted a further inquiry amounting to a reinvestigation of the allegations. The manager hearing the appeal, Mr Odell, carried out the investigations himself. However, he concluded that Ms Yeung was guilty of misconduct and dismissed the appeal without showing her the new statements.
Tribunal decision
The tribunal concluded that the care home had a genuine belief that Ms Yeung was guilty of misconduct. It also had reasonable grounds for holding that belief because, although Ms Yeung did not attend either of the disciplinary hearings, she did attend the appeal hearing when she had the chance to answer all the allegations against her. Mr Odell then reinvestigated the allegations and interviewed the relevant employees, all of which effectively amounted to a rehearing. On that basis, the tribunal held that her dismissal was fair.
Ms Yeung appealed because Mr Odell had failed to write to her with the outcome of his investigations (among other things) and thus had not met the standards set in A v B (in which the Court of Appeal held that employers must be meticulous when investigating serious allegations of criminal misconduct). In addition, she argued that because the judgment was so brief, the tribunal had failed to deal with other points she had raised.
EAT decision
The EAT dismissed the appeal, holding that tribunals do not have to specifically mention A v B in every case where alleged misconduct results in dismissal. In this case the question was whether the tribunal should have dealt with the fact that Mr Odell had not given Ms Yeung the new material which he had accumulated in the course of his investigation, as this failure might have rendered the procedure unfair.
However, the EAT decided that it did not. Firstly, Ms Yeung had not objected to the fact that Mr Odell had not come back to her with the results of his enquiry at the time; and secondly, the tribunal did consider the point in its judgment, although its explanation was rather short. The tribunal clearly thought that there had been a reasonable investigation and that the procedure the employer had followed was also fair.
Viewed broadly, the tribunal judgment set out the allegation that had been made, that there was considerable supporting material and that there was no credible reason to controvert it. In addition, the matter had been investigated conscientiously by the manager on appeal.
Despite the sparseness of the tribunal’s language in the judgment, it was still obvious to Ms Yeung why she had lost the case.