In the recent case of Surrey County Council v Henderson, the Employment Appeal Tribunal found that the level of investigation carried out by the employer following serious allegations against the employee, was not outwith the "band of reasonable responses" where evidence supporting the allegations was not given to the employee prior to his dismissal.
Mr Henderson worked for Surrey County Council (SCC), and on 13 February 2004 Mr Findlay told him that serious allegations had been made against him and invited him to attend a meeting on 16 February, although he did not detail the nature of the allegations. Mr Henderson did not go to the meeting and was referred to a psychiatrist after becoming increasingly distressed.
On 16 February Mr Findlay wrote to Mr Henderson suspending him, awaiting a full disciplinary hearing. He was informed that SCC had received reports from a number colleagues that he had made violent threats towards them. On 1 March Mr Henderson's trade union representative raised a grievance about his treatment, however Mr Findlay rejected the complaint.
On 19 March, Mr Findlay wrote to Mr Henderson stating that he had spoken to those who had made the allegations and that he had found that he had made violent threats to a number of people, although he did not provide any details of when, or to whom, the threats were made (Mr Findlay had received five individual statements however the individuals did not wish to be identified and Mr Henderson did not have an opportunity to see them). Mr Henderson was thereafter given a week to respond to the allegations with a final decision to be issued shortly thereafter.
The trade union representative again sought a grievance meeting, pointing out that he was still unaware of the basis of the allegations, and explaining that Mr Henderson was not medically fit to attend a hearing before 25 March. This grievance was again ignored and Mr Henderson was summarily dismissed on 29 March. The subsequent appeal by Mr Henderson was unsuccessful and again Mr Henderson was not able to see the statements.
Mr Henderson brought a claim for unfair dismissal, which the tribunal upheld. The tribunal found that SCC had a potentially fair reason to dismiss him although it found the dismissal to be unfair because he was not given details of the allegations against him. Furthermore, it found that the confidentiality of the informants was not an adequate reason to prevent disclosure of the statements. The tribunal also found that Mr Henderson was dismissed without the opportunity to defend himself, and that as the tribunal had not been provided with the statements, no deduction could be made to reflect the fact that Mr Henderson may have been dismissed in any event.
SCC appealed the decision. The EAT, in considering the fairness of the dismissal, referred to the case of Linfood Cash and Carry Limited v Thompson [1989] IRLR 235, which provides guidance on the balance to be struck between confidentiality of informants and fairness to the accused employee. The EAT held that the tribunal had not considered whether SCC had reasonable grounds for its belief that Mr Henderson was guilty of misconduct following a reasonable investigation. The EAT held that the tribunal should have investigated why there was a need for anonymity and balanced the needs of the informants against the needs of Mr Henderson, rather than substituting its own view for that of a reasonable employer.
This case demonstrates that where employees are not provided with details of allegations against them, the dismissal may not be unfair. Employers must be able to demonstrate that they carried out a reasonable investigation, and in these situations employers should perhaps consider the possibility of providing any statements to the accused employee in suitably edited format.