Introduction

A fair investigation is the foundation of any disciplinary process, helping to gather evidence, understand what actually happened, and decide whether there is a case to answer. Getting this stage right is crucial, particularly where the outcome could be dismissal for gross misconduct with the career limiting impact this can bring. The recent case of Mbonda v Quarryfields Health Care Limited is a clear reminder of this. The employer’s flawed approach to investigating conduct concerns became the central issue and ultimately led to a costly award against the care home.

Background

The Claimant began employment with the Respondent on 1 August 2015 as a nurse. The Respondent is a care home that operates as part of Exemplar Health Care, a specialist nursing home provider which operates 45 specialist nursing homes.

The Respondent’s Staff Sleeping on Duty Policy stated that staff must not sleep on duty and that, if this were to occur, the individual would be subject to disciplinary action, with the likely sanction being dismissal for gross misconduct. The disciplinary policy similarly listed sleeping on duty as gross misconduct.

On 9 March 2023, the Claimant worked a night shift alongside five other members of staff. Two were white and three were black. The Claimant worked another night shift the following day alongside six colleagues. One was white and the remaining five were black. Three white members of staff made a complaint against the Claimant, stating that they believed she was asleep during her shifts on 9 and 10 March 2023. An investigation was commenced.

The Claimant was invited to a meeting to discuss the allegations. Three issues were discussed:

1. Medication and administration;
2. Written complaints about the Claimant sleeping during the shift; and
3. Time management and recurrent lateness.

The Claimant was asked to provide a detailed written statement of her account of what happened during her shifts on both 9 and 10 March 2023. The Claimant was not informed who made the allegations or what the allegations were, beyond the most general terms. The investigating manager followed up with the Claimant to ask for this written statement, and the Claimant replied requesting a copy of the allegations and attaching a fit note referencing workplace bullying and certifying her as unfit to work. The Respondent explained that the investigation meeting with the Claimant would be placed on hold while she was unfit for work and confirmed that they would not provide the statements as they were in the investigation stage of the disciplinary process.

The Claimant was signed off from work from March 2023 and attended the investigation meeting the following month. After the meeting, the Claimant emailed the investigating manager to ask why all staff on the shifts had not been questioned. On the same day, the investigating manager decided to close the investigation and did not reply to the Claimant’s email.

The Claimant briefly returned to work in May 2023 before being signed off again until her resignation at the end of the year.

The Claimant was invited to a disciplinary hearing on 8 July 2023, at which she was accompanied by her union representative. In this hearing, the union representative raised concerns that the allegations may be racially motivated, highlighting that only white members of staff were interviewed as part of the investigation, despite a number of black members of staff also being on shift when the alleged incidents occurred. Despite this being raised, the investigating manager did not conduct any further interviews or revisit her earlier interviewees. The investigating manager told the Tribunal that her reason for this was because she did not believe that interviewing others would have changed the outcome.

The Claimant received a final written warning. She appealed, but the appeal was rejected. She resigned on 9 December 2023 with immediate effect and brought a claim for direct race discrimination. She described her ethnicity as Black African.

Tribunal’s Decision

The Tribunal concluded that the Respondent discriminated against the Claimant on the grounds of race because it relied on evidence from only white members of staff and therefore did not carry out a full and fair investigation. The Employment Judge stated that the Respondent’s investigating manager “demonstrated a closed mind” and said that the Respondent did not take seriously the suggestion that the complaints could be racially motivated. The investigating manager had simply accepted what she was told at face value by everyone except the Claimant. The manager did not challenge anyone on the evidence, nor did she ask probing questions. The Tribunal also highlighted that the manager lacked experience in investigations and there was no suggestion she had received appropriate training or advice on the investigation.

In the recent remedy hearing, the Tribunal confirmed that £23,603.45 should be awarded as compensation. £16,500 was awarded for injury to feelings, with the remaining amounts made up of loss of earnings, pension, and interest. The award included a 10% uplift for the employer’s unreasonable failure to follow the Acas Code of Practice.

Lessons for Employers

Employers must ensure that:-

1. Investigations are conducted thoroughly and impartially. Investigating managers should speak to all relevant witnesses and test the credibility of all accounts, rather than accepting allegations at face value.
2. Investigating managers maintain an open mind while carrying out investigations. For example, the investigating manager said it was not normal practice to re-interview at the disciplinary stage, despite serious concerns being raised.
3. Appeals are considered properly. Appeals are an opportunity to revisit the earlier investigation and disciplinary process to address any previous failings.
4. Be aware of and comply with the Acas Code of Practice on Disciplinary and Grievance Procedures otherwise risk a further financial penalty.
5. Train managers on how to conduct a fair investigation.

How we can help

For further information, or to discuss the issues raised within this case, please contact us to speak to a member of our Employment Team.

This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.