Category Archives: disciplinary investigation

Jeremy Clarkson and the Final Warning

Last week Jeremy Clarkson was in the news for apparently using the “n” word.  This latest utterance is the most recent in a string of what can only be deemed racially discriminating outbursts.  It seems that the BBC has had enough and given Clarkson a final warning that will remain on file indefinitely.

His previous comments include:

“If it turns out that a Malaysian customs officer cannot be bribed, I shall renounce Christianity and move to the Orkneys where, I’m told, everyone is Lucifer’s best mate.”

“We know also that the French are rude, the Italians are mad and the Dutch are a bunch of dope-smoking pornographers.”

“Each Wednesday, I have to make a 120-mile journey from Nairobi, south London, to Bombay, near Birmingham.”

“If you happen to be a homosexualist Cypriot, you cannot expect everyone in the whole borough to finance your perversion.”

In March Clarkson used the term “slope” in a Top Gear programme, which is a derogatory term for people of Asian descent.

This latest episode where he was reciting what once was an acceptable nursery rhyme that contained the n word which he mumbled but, nonetheless, said was filmed in 2012.  The footage, however, was not broadcast.   Clarkson subsequently apologised after forensic investigators confirmed he had said the word in question, but the situation has caused a furore in the press with many commentators calling for his sacking.

So has the BBC acted fairly by issuing a final warning that must remain on file indefinitely?  If Clarkson makes one more offensive remark he will lose his job.

The ACAS code of practice recommends that if a final written warning is issued the following should apply:

A final written warning should set out the nature of the misconduct or poor performance and the change in behaviour or improvement in performance required (with timescale). The employee should be told how long the warning will remain current. The employee should be informed of the consequences of further misconduct, or failure to improve performance, within the set period following a final warning. For instance that it may result in dismissal or some other contractual penalty such as demotion or loss of seniority.

Whilst the BBC have complied with many of the principles, having an indefinite final warning hanging over Clarkson with the threat of his every word being scrutinised is arguably quite harsh and misinterprets the ACAS code the aim of which is promote fairness.  It could be difficult for this controversial figure who has a history of being outspoken to comply. although he must do his utmost to do so.

I usually recommend to my clients that a final written warning should remain on file for twelve months and sometimes two years if the behaviour that warrants the warning has been sufficiently serious.  If the employee commits another offence whilst the warning is live, then dismissal could be the next step.  I also recommend that after the warning has expired the paperwork relating to that disciplinary situation is destroyed so it can not be used against the employee in future.

If Clarkson does not agree with this decision he can of course appeal.  He could also put in a grievance about the unfairness of the indefinite warning.






How to Undertake a Reasonable Investigation

The recent case of Stuart v London City Airport has highlighted the importance of undertaking a reasonable investigation before an employer takes action.  In this case the employer failed to investigate the conduct of an employee who the employer considered had stolen goods.

The employee was a grounds services agent who entered the duty free store within the airport to buy some presents.  Whilst he had the goods in his hand he got involved in a conversation with a colleague which took him outside of the store without paying for the goods.  He was then apprehended for removing the goods without payment.  A store assistant had told the store manager the employee concealed the goods under his jacket before he left the store, however, they were never interviewed as part of the internal investigation or called to give evidence at the employment tribunal.  The employer did not consult the CCTV footage nor interviewed the staff member who had beckoned the employee outside of the shop in order to have a conversation.
The employment tribunal found that dishonesty had occurred but the claimant appealed and the EAT found that the employer should have carried out a fuller investigation given the gravity of the situation before making a decision.  The investigation was not considered reasonable.  The outcome from the EAT was that a new employment tribunal hearing should take place to determine how far the claimant contributed to this dismissal.
The purpose of an investigation is to establish the facts of a case.  This can be in the case in instances related to a disciplinary, bullying harassment, grievance and even sickness absence. 

It is always best to make an initial plan by deciding how best to gain the evidence. This should include who should undertake the investigation, who should be interviewed together with what documents and evidence need to be obtained.
In determining who should undertake an investigation, ideally the investigators should be totally independent from the situation and the individuals involved.  Ideally there should be two investigators, one person to ask the questions and the other to take notes as it so difficult to take and take notes at the same time.  In a large organisation this can often be an independent manager supported by an HR representative.  In a small organisation this can often be difficult due to manpower resources, but it is preferable that senior members of staff undertake the investigation.  It is best to provide investigation training so that inexperienced investigators understand what to look out for and how to question witnesses.  As an alternative it is possible to draft the assistance of specialist investigators or an experienced independent HR consultant.   Speed is of the essence to ensure that evidence isn’t destroyed or key facts forgotten.  It is always important to have an open mind.
The first step would be to interview the employee at the centre of the investigation.  With a disciplinary situation it would be the employee whose conduct is in question or with a grievance it would be the employee who has submitted the grievance.  The interview should be held in private with confidentiality at the forefront of proceedings.   It is a good idea to allow the employee to be accompanied even at this stage particularly if detailed in company procedure.
Questions that tease out the main issues should be asked, ideally using open questions (who, what, when, where, how, why) to elicit information).  If there is a note taker they need to remain alert to capture the answers; it can sometimes be difficult to concentrate.  Unless they have fast shorthand skills, it is impossible to capture dialogue verbatim therefore it should be done as accurately as possible.  It might be necessary to ask for the dialogue to slow down so that important points are  logged.  Nevertheless, questions that require a yes or no answer should be captured.  It is important to remember never to put words into the mouth of the person being interviewed.   A set of questions can be prepared before the interview that can be supplemented as the interview proceeds. 

It is a good idea to take regular breaks which help take stock of information gathered and to refresh the mind.  Some interviews can go on for hours so breaks are vital.  Tea and coffee should be available.
All witnesses should be interviewed the in same manner.  If fresh witnesses or new names are mentioned as the interviews take place it is important to interview these as well. It might also be necessary to interview witnesses more than once if new facts or discrepancies arise. 

The whole point of the exercise is to leave no stone unturned to ensure that there is ultimately no miscarriage of justice.
All interview notes should be neatly typed up and ideally statements signed and dated by individual witnesses.  With some large organisations an overall report is produced to decide a case to answer and/or to inform a hearing.
An investigation should be reasonable, but where an employee’s job is at risk and an employment tribunal claim possible, it is important to ensure that a thorough job is done. 

Undertaking a Disciplinary Investigation

It was reported recently that a union member was sacked by Salford Council for assault.  He went to an employment tribunal and won his case for unfair dismissal.  The tribunal found that the council had failed to establish that an assault had taken place.  In fact the employee had merely brushed past the manager with whom he was having a heated disagreement in a narrow corridor.
Such a case highlights the importance of rigorous investigation before taking disciplinary action particularly dismissal.  All witness should be thoroughly interviewed at least once if not several times if discrepancies come to light during the investigation process.  They should be interviewed individually using a question and answer format.  Alternatively they should be asked to provide their own statement which should be done whilst supervised.  All relevant paperwork/evidence should also be collated.  The process can be conducted by managers or, as it can take up time, by an experienced HR consultant.  Sufficient time should be taken to ensure the investigation is completed well and a comprehensive report written up.  The investigation forms the basis of whether to go forward to a disciplinary hearing or not.
It should aim to leave no stone unturned and, if done correctly, can prevent a costly miscarriage of justice.