Workplace Investigations: lessons from a recent case

In brief 

• The Employment Appeal Tribunal's (EAT) recent decision in Clifton Diocese v Parker is a cautionary tale of what can go wrong in a workplace investigation, recording a series of serious procedural failings by the appointed investigator.  
• Notably, the employer didn't try to appeal the employment tribunal's decision that these failings made the dismissal unfair.  
• The EAT allowed the employer's appeal on the discrimination and harassment findings, which have been remitted to the same employment tribunal for redetermination. As the EAT emphasised, unfair treatment is not, by itself, evidence of discrimination — but the procedural failings in this case speak for themselves. 

What happened in this case?

The claimant was Head of Finance at Clifton Diocese and was preparing to return to work following her adoption leave. She requested a flexible working arrangement, seeking to return three days a week to fit around her child's nursery place. The claimant's manager, who had raised concerns about her performance internally to others some months earlier, put them to the claimant for the first time during that conversation. They were then recategorised as allegations of gross misconduct – a step that the employment tribunal found had been contrived by the manager and the employer's HR adviser to procure her dismissal. An external investigator was appointed to carry out the investigation; the investigator went on, in substance, to conduct the disciplinary hearing as well, and the claimant was dismissed for gross misconduct.

The claimant succeeded in the employment tribunal in her claims for unfair and wrongful dismissal, and in part in her claims for discrimination and harassment.  The employer appealed the discrimination findings only; those have been remitted for redetermination.

What is notable is the extent to which the approach taken by the investigator came under fire from the employment tribunal – these were findings that were not appealed, and which the EAT set out in full in its appeal judgment.

What were the flaws in the disciplinary process?

It is not unusual for an employer to be criticised by an employment tribunal when assessing how a disciplinary process has been conducted. However, in this case, the way in which the investigation and disciplinary process was conducted was very specifically called out. The criticisms of the investigation and disciplinary process, much of which was directed against the investigator herself, included the following:

• The claimant was not provided with detailed allegations to which she could properly respond;
• The investigation interview was conducted in the claimant's absence;
• The investigator was not informed of the claimant's mental health condition and, not knowing them, refused her request for the meeting to be held remotely;
• The investigator failed to look for exculpatory evidence, and approached the process as though it was for the claimant to disprove the allegations;
• The investigation was rushed, and rested largely on what the investigator had been told by one person, with only limited supporting documentation considered;
• At the disciplinary hearing, the investigator spoke to the claimant "as if she was a naughty school child", humiliating her.

Key takeaways

1. Outsourcing an investigation does not outsource the liability. Anything done by an employee in the course of their employment, or by an agent acting with the employer's authority, is treated as done by the employer. Appointing an external investigator therefore does not insulate an employer from the way that the investigator behaves, and the manner in which an investigation is conducting can itself amount to discrimination. An individual investigator may also face personal discrimination liability (though that was not in issue in this case).
2. Disclose the allegations in advance. The subject of an investigation must know the substance of the allegations against them before the investigation meeting, not on arrival at it. Calling someone to a meeting without telling them what it concerns is procedurally unfair and, as this case illustrates, can have significant consequences for the process as a whole.
3. Allow sufficient time to respond. The subject of an investigation must have adequate time to consider and respond to the allegations. Requests for additional time - whether to gather documents, obtain advice, or prepare a response - should be given proper consideration and any refusal justified. Timescales should be built in from the outset, with any deviation from them properly documented. 
4. Consider and accommodate reasonable adjustments. Before any investigation meeting, the investigator should establish whether the subject has any health issues or other circumstances that may affect their ability to participate and make appropriate adjustments.
5. Seek out exculpatory evidence. An investigator must approach their task with an open mind. A thorough investigation requires the investigator to seek out evidence that supports the subject's account with the same rigour as evidence that undermines it.
6. Conduct is as important as conclusions. The employment tribunal was highly critical of the way the investigator spoke to, and engaged with, the claimant. It is a stark reminder that an investigation that reaches the right conclusion but does so in a manner that is dismissive, disrespectful, or inappropriate still carries significant legal and reputational risk.
7. Keep investigation and decision-making separate, where practicable. Here, the investigator not only carried out the investigation but, in substance, conducted the disciplinary hearing and afterwards drafted the reasons for dismissal. Separating the two roles is a strong indicator of impartiality and makes the process far easier to defend.

With the compensatory cap coming off all ordinary unfair dismissal claims from 1 January 2027, the cost of getting a dismissal wrong will increase significantly for employers. Carrying out a fair and balanced investigation is a key component of a lawful conduct dismissal. This case is a timely reminder that an investigation is judged not only on its outcome, but on the integrity of the process by which it is reached.