In cases of misconduct, employers have to have reasonable grounds for believing that their employee was guilty of misconduct and have to carry out a reasonable investigation. In Hargreaves v Governing Body of Manchester Grammar School, the Employment Appeal Tribunal (EAT) held that it was not unfair for the school to withhold witness statements from the claimant and the disciplinary panel which dismissed him.
Mr Hargreaves, a teacher with over ten years’ experience and a clean disciplinary record, was alleged to have grabbed a pupil, shoved him up against a wall and put two forefingers against his throat.
As part of its investigation, the school interviewed a number of witnesses three of whom had been present at the time of the incident, but who said that they had seen nothing untoward. Although there were other potential witnesses, the school decided not to formally interview them in order to prevent speculation and gossip. The information from the three witnesses were not disclosed to Mr Hargreaves or the disciplinary panel at the disciplinary hearing.
Following the hearing, he was dismissed. His appeal against the decision was unsuccessful.
Rejecting Mr Hargreaves’ argument that the investigation had been biased against him, the tribunal held that the decision taken by the school about who should be interviewed and who should not had fallen within the band of reasonable responses.
It also found that it was within the reasonable range of responses for the school to decide not to inform Mr Hargreaves or the panel about interviews with people who said they had seen nothing. According to the tribunal it did not follow that nothing had happened just because those individuals had seen nothing. The tribunal therefore concluded that, as the school had carried out a reasonable investigation, the dismissal was fair.
Mr Hargreaves appealed, arguing that given the career-changing impact of the allegations, the school’s investigation was inadequate. In particular, he argued that the tribunal was wrong about the school’s failure to disclose specific evidence from potential witnesses who all said they had seen nothing.
Dismissing the appeal, the EAT held that the tribunal had not lost sight of the potentially career-changing nature of the allegations against Mr Hargreaves. and, in determining that the investigation met the requirements of the band of reasonable responses test, the tribunal had reached a permissible conclusion.
The EAT agreed with the tribunal’s finding that the three witnesses were unable to assist - although they had been present at the time of the incident, they had not seen anything untoward. The EAT noted that the area where the incident took place was crowded and that witnesses had spoken of over 100 pupils pushing and shoving their way through. The EAT also commented that this was not a case in which the claimant was unaware of the evidence in question, it was clear that he knew that the three individuals had been present in the area but he had not asked for statements to be obtained from them.
The facts of this case were unusual and it should not be regarded as establishing any general principle. It remains the case that any decision by an employer to withhold relevant evidence is likely to make a dismissal unfair. In this particular case, both the tribunal and the EAT were satisfied that the evidence of the three witnesses was not relevant.
The case underlines the importance, for those representing members facing disciplinary hearings, of considering with the member whether or not there are any other witnesses the employer should interview and, if so, formally requesting that statements are taken from those witnesses.