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Unfair Dismissal: No need for separate 'investigation' hearing

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One of the questions I hear most frequently from employers is: 'Do we need to hold a separate investigation hearing?' The answer is no, no, and thrice no. Unless you do.

The Acas Code, at paragraph 5, states: "It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing."

There is no legal requirement that an employer hold an investigation meeting before holding a disciplinary meeting in order for a dismissal to be fair. Section 98(4) of the Employment Rights Act 1996 simply requires an employer to act 'reasonably'. In the modern workplace, it would be unusual - certainly for a private sector company which does not have a disciplinary policy requiring two meetings - for an employer to be acting unreasonably by only holding one meeting rather than two (provided the employee knows full details of the allegations they're facing in advance). And there is always an appeal to give the employee a second chance to explain their case.

And that is what the EAT has just held in a very short judgment in Sunshine Hotel v Goddard.

Of course, the position is different if there is a collective agreement, or a disciplinary policy, which requires the employer to hold a separate investigatory meeting. In that situation, it is sometimes (but not always) going to be unfair if the employer fails to comply with its own policy.