The importance of a fair and thorough investigation.

A recent decision of the Employment Appeal Tribunal provides a serious warning to employers in respect of ensuring the need for appropriate investigation of grievances.

In the case of Bivonas LLP v Bennett it has been decided that the Employment Tribunal was right to work on the basis that an inadequate investigation was of itself discriminatory, unless the employer could prove otherwise.

This technical reinforcement of the law around the burden of proof in discrimination emphasises the importance of always undertaking a full fair and thorough investigation.

The Case:

While looking through an old file, Mr Bennett (who is openly gay) found a note made by a senior employee of the firm. This referred to Mr Bennett taking “our cases to his batty boy mate”. The Tribunal found this to be sexual orientation discrimination even though he was never intended to see the note. They said the words used were a pejorative slur on gay men and made the suggestion that Mr Bennett was passing work to someone else because they were gay and therefore not for other meritorious reasons. More importantly, the Tribunal also found the way in which the subsequent grievance investigation was undertaken also amounted to sexual orientation discrimination.

The EAT has agreed that the Tribunal was entitled to assume that, in the absence of a good alternative explanation, the reason that the investigator had undertaken a rapid cursory investigation without any notes was because of Mr Bennett’s sexual orientation. The facts of this case were enough to reverse the burden of proof, particularly: the words used in the note itself; the cursory nature of the investigation and the lack of notes made; and the investigator’s conclusion that the writer of the note did not hold homophobic views based on knowing him for many years.

The Implications:

It is important to fully investigate grievances. Tribunals particularly like documents that show them that an investigation has been undertaken, the process followed, and the time and effort spent. Sometimes a grievance may be felt to have little merit or the outcome may seem obvious before you start. You may believe you know that this person would never discriminate or say those words. However where allegations are made which have a discriminatory element, it is very important that you still follow a full and thorough process and ensure that you can demonstrate that you have done so. If you do not, you risk your investigation being found to be discriminatory.

Conclusion:

When faced with a discrimination claim, where the burden of proof lies can be very important. Here, instead of the claimant needing to prove that the investigator discriminated against him because of his sexual orientation (which may have been difficult), the employer had to prove the poor investigation was for some other reason. Proving why something has been done badly is often difficult, as it was for the employer in this case. Many of the claims we see allege that the conduct of an investigation has been discriminatory, because that is why the employee has resigned or due to the limited time limits for discrimination claims. Making sure your investigation looks fair and thorough is essential to defending such an allegation.