Disciplinary Workplace Investigations

How to Beat and Prepare for Disciplinary Workplace Investigations:

Workplace investigations, what are your employee rights for a disciplinary workplace investigation here in the UK?

Are you looking for help on how to beat or how to prepare for a disciplinary hearing at work?

Do you need to raise a grievance letter due to a workplace disciplinary investigation, disciplinary procedure or disciplinary hearing?

This page has been created by Sam Stone and his wife Amy to assist you in articulating the steps, which you could take in the event you are subjected to a workplace disciplinary investigation and/or disciplinary hearing.

Reading through the pages of this website and educating yourself with your rights as an employee or worker, will give you a better fighting chance against your employer, its management, and the HR Department.

The following steps should ensure that the disciplinary procedures are not flawed. The last thing you want is a flawed disciplinary investigation!

These are the steps, which you could take as an employee to prepare for a disciplinary hearing or if you need to prepare for a disciplinary investigation.

Step 1:

Suspended:

Whether or not you have been suspended from work by your employer or its HR Department, I would suggest that you read the following paragraphs by reason that just because you have not yet been suspended, is not to say that you won’t be suspended once a disciplinary investigatory meeting has been concluded by your employer.

If you have been suspended from work pending a disciplinary workplace investigation, then it is incumbent upon you to object, protest and challenge the decision by your employer to suspend you by raising a letter of grievance. I have created a grievance letter template you could use if you have been suspended from work pending a workplace investigation.

It is very important that you raise a grievance letter if you have been suspended from work, because if you do not ‘object, protest and challenge’ your employer’s decision to suspend you, then in essence you are affirming and acquiescing what the employer has done in suspending you. No doubt, your employer would argue in the employment tribunal that if you felt that the decision to suspend you was wrong, that on the balance of probabilities, you would have complained and have raised a formal grievance letter.

For the avoidance of doubt, the Court of Appeal has held on two separate occasions that suspension from work is not a ‘neutral act’ – not least because being suspended from work changes the status quo from work to no work, and furthermore, casts a shadow over the employee’s competence.

FYI, in the case authority of Mr J Hargreaves v Governing Body of Manchester Grammar SchoolUKEAT/0048/18/DA, the Employment Appeal Tribunal drew an ‘adverse inference’ that the claimant had not advised his employer (the respondent) that his suspension was “inappropriate”.

The above case is important and well worth reading, because the above case authority demonstrates why you must not just be a nodding donkey during the course of the disciplinary investigation and disciplinary procedures, but rather, be proactive in raising any reasonable concerns (via email) germane to how the disciplinary procedures are being conducted. Therefore, the question you must ask yourself is, was the suspension ‘reasonable’? If not, then use the grievance letter template I have created to object, protest and challenge your suspension from work.

Notwithstanding, the aforementioned case authority also outlines how useless the union was in advising the claimant during the disciplinary procedures. As such, don’t be led by the nose by the union. I have today (28.4.21) been helping a client appeal their grievance outcome. Within the grievance outcome letter, the investigating officer has pointed out the fact that neither my client nor the union representative suggested that the what the employer had done was wrong. This is why I have created this page, so you don’t make the same mistake!

If you have actually been suspended from work pending a disciplinary workplace investigation, and you are looking to raise a grievance letter because you have been suspended from work, then click here and then come back to this page later.

Step 2:

Disciplinary Investigatory Meeting:

First Mistake – don’t be ambushed by the employer into attending a disciplinary investigation meeting. Most employers will want the employee to attend a disciplinary investigatory meeting quite quickly to investigate your conduct. If you suspect you are being ambushed into a workplace investigation, then seek clarity (via email) of the purpose of the meeting before attending. Personally, I would ask for an agenda of the disciplinary investigatory meeting in advance of attending that meeting.

Notwithstanding, if the person or persons undertaking the disciplinary investigatory meeting have a conflict of interest and/or if you are concerned that they may act with bias, then you need to raise a grievance letter to object, protest and challenge their involvement in the disciplinary process.

Reasonable Adjustments:

If you have any medical condition, which is exacerbated by stress such as asthma, eczema, anxiety, cancer, depression, thyroid, IBS, diabetes, heart condition, dyslexia, asperges, then you need to ask the HR Department and management to implement reasonable adjustments to the disciplinary procedures.

The reasonable adjustments for the disciplinary investigation and disciplinary hearing can include the following:

• Undertaking the disciplinary procedures via written form (via email) to ameliorate the stress and anxiety of attending the disciplinary investigatory meeting in person or via video link. Don’t be caught like a rabbit in the headlights by attending a disciplinary meeting in person or via video link!
• To ask the employer to communicate with you only by email, and not to telephone you as to do so will ‘significantly influence’ your disability / impairment / medical condition.

Note, if the employer or the HR Department ‘significantly influence’ a disability by causing you unnecessary stress or anxiety when conducting the disciplinary procedures, this could be a potential contravention of s.15(1)(a)(b) of The Equality Act 2010.

For the avoidance of doubt, the discrimination does not need to be intentional. Put shortly, where the complaint is of ‘discrimination arising in consequence of disability’ it may be enough if the disability was a significant influence on the treatment or a cause that was not the main or sole cause but that was an effective cause. See Private Medicine Intermediaries v Hodkinson & OrsUKEAT/0134/15/LA.

Thus, if you have a disability, impairment or medical condition that is exacerbated by stress, I would suggest you reach out to me to assist you in going through the disciplinary procedures – samstone@formalgrievance.com

• To ask your employer to send all correspondence germane to the disciplinary matters against you (via email), and no less than 5 days prior to the disciplinary investigatory meeting taking place. This will render you with enough time to look through all the evidence against you in advance of the disciplinary investigatory meeting / workplace investigation to prepare your statements in advance, and furthermore, to compose yourself, and what you are going to say at the disciplinary investigatory meeting in the event you decide to attend the disciplinary meeting. Remember – piss poor planning leads to piss poor performance.
• To ask your employer to seek the advice of occupational health in assisting your employer and the HR Department in putting in place the adjustments, which you need for the disciplinary meeting, and not what adjustments the employer and HR Department ‘think you need’.

If you have a disability or impairment, and the employer / HR Department omits to put in place reasonable adjustments, then raise a grievance letter for contraventions of s.20(3); s.21(1)(2) & s.39(5) of The Equality Act 2010.

Remember, the best defence in being subjected to a disciplinary process is to go on the offensive. Put shortly, if the employer is drawing an adverse inference on something, which you have done wrong, and is subjecting you to a disciplinary process, then you need to do the same to the employer, especially when the employer, its HR Department and/ or management have breached the Equality Act 2010.

On the balance of probabilities, the employer breaching the Equality Act 2020 will be far more serious than any allegations, which have been made against you!

• To enable you to have breaks as and when you need them during the disciplinary investigatory meeting, workplace investigation and/or disciplinary hearing.
• To allow you to have a companion. For the avoidance of doubt, the law does not allow you to have a companion at a ‘disciplinary investigatory meeting’ only at full disciplinary hearing. However, f you suffer from either asthma, anxiety, depression, PTSD or any other mental impairment, you could ask your employer to allow you to be accompanied to the disciplinary investigatory meeting / disciplinary hearing by a family member or friend. Google ‘Crisp v Iceland Frozen Food’.
• To ask your employer, its HR Department and management (via email) to observe and implement the recommendations outlined and encompassed within The Statutory Code of Practice on Employment 2011, Chapter 17 (paragraph 17.93) –

“Employers should ensure that when conducting disciplinary and grievance procedures they do not discriminate against a worker because of a protected characteristic. For example, employers may need to make reasonable adjustments to procedures to ensure that they do not put disabled workers at a substantial disadvantage.”

• To insist that whoever undertakes the disciplinary investigatory meeting and/or disciplinary hearing receives ‘disability-awareness training’. See Bush v Rolls Royce [1999] ET/1401054/98.

An omission to render the person/s undertaking the workplace investigation / disciplinary meeting with disability awareness training, could constitute a relevant failure of s.20(3); s.21(1)(2) & s.39(5) of The Equality Act 2010.

• To allow you to audio record the disciplinary investigatory meeting and disciplinary hearing. If the employer and/or its HR Department doesn’t allow you to audio record either the disciplinary investigatory meeting or the disciplinary hearing, then raise a grievance for ‘disability discrimination’. Contact me to help you raise a grievance letter – samstone@formalgrievance.com
• To ask the employer to observe the implied term of mutual trust and confidence during the disciplinary investigatory meeting and/or disciplinary hearing, and not to act in a manner to ‘impinge’ on the implied term of mutual trust and confidence. This applies whether or not you have a disability. See Kaur v Leeds Teaching Hospital.
• To provide you with the minutes of the disciplinary investigatory meeting and/or disciplinary hearing straight after the meeting / hearing has been held. You do not want to give your employer any opportunity to amend their notes. Again, this applies whether or not you have a disability.

Step 3:

Obtaining Evidence:

Whether or not you have been suspended, you want to obtain all the evidence in advance of the disciplinary investigatory meeting / workplace investigation taking place.

You should email the HR Department and ask for sight of all the evidence in advance of the workplace investigatory meeting. Don’t do this verbally, do it via email. If the information is not forthcoming in good faith, raise a grievance in writing.

In order to ensure a fair and equitable disciplinary investigation, you need to have sight of all the evidence in advance of the disciplinary investigation meeting taking place. Don’t be ambushed into a disciplinary meeting / workplace investigation without knowing all the allegations against you, including having sight of all of the evidence, which supports those allegations.

If your employer has already invited you to a meeting and you were not aware at the material time that the meeting, which you attended was a ‘disciplinary investigatory meeting’, then raise a formal grievance for breach of the implied term of mutual trust and confidence.

With regard to the above, I draw your attention to the specific wording in the following case authorities –

Spink v Express Foods Limited [1990] IRLR 320 –

 “It is a fundamental part of a fair disciplinary procedure that an employee know the case against him. Fairness requires that someone accused should know the case to be met; should hear or be told the important parts of the evidence in support of that case; should have an opportunity to criticise or dispute that evidence and to adduce his own evidence and argue his case. “

Bentley Engineering Co Ltd v Mistry [1979] ICR 47 –

“Employers disciplinary proceedings require that an employee should have a chance to state his own case [and] to know sufficiently what was being said against him, so that he could put forward his own case properly, and have a chance to state his own case in detail. The employee must know in one way or another sufficiently what is being said against him. If the employee does not know sufficiently what is being said against him, he cannotproperly put forward his own case. This encompasses the employee either being allowed to see witnessstatements against him or be allowed to listen to what witnesses have to say about him. “

The above case authorities refer to the “disciplinary proceedings”. For the avoidance of doubt, this includes the ‘disciplinary investigatory stage’.

Therefore, do NOT get ambushed into a disciplinary investigatory meeting and/or disciplinary hearing without having had sight of all the evidence and allegations, which have been made against you.

Notwithstanding, ask (via email) that all the evidence and allegations against you are furnished to you no less than 5 days in advance of the disciplinary meeting / hearing taking place.

Put shortly, if co-workers have made allegations against you and/or have raised grievances against you, then you have a right to see what has been said about you, and furthermore, to cross examine any persons who have made allegations against you, not least if the allegations are vexatious, malicious and/or which sully, traduce and stigmatise your reputation, especially if you are a ‘professional person’.

If your employer and the HR Department don’t allow you access to the allegations, which have been made against you as part of the disciplinary investigation or disciplinary hearing, then raise a grievance in writing – (1) due to the failure by your employer and/or its HR Department / management to observe the implied term of mutual trust and confidence; (2) for showing bias. Contact me – samstone@formalgrievance.com

It is incumbent upon your employer to undertake a fair and equitable disciplinary process. A failure to do so could ultimately lead to you claiming constructive unfair dismissal. For the avoidance of doubt, the employment tribunal has held that ‘any breach’ of the implied term of mutual trust and confidence is repudiatory.

In the event these matters end up in an Employment Tribunal, the Employment Tribunal will be looking for you to have objected, protested and challenged anything which your employer, its management and/or HR Department have done, which you did not agree with. Don’t be a lap dog!

If your employer is not acting in good faith, then you need to outline this complaint in writing by raising a formal grievance.

Step 4:

Correspondence:

Personally, I would ensure that all correspondence regarding the disciplinary procedures between you and your employer is via email, and not done verbally.

Make sure you take screen shots of all emails. Be careful forwarding work emails to your personal email address, as this could very likely lead to further disciplinary action being taken against you. Read your employer’s IT Policy & Disciplinary Policy.

The reason I would suggest taking screen shots of emails is to ensure that at a later date you can always use these emails as evidence in the employment tribunal insofar that you have objected, protested, and challenged anything, which your employer did, or did not do.

Employers will often suspend you to stop you have access to work emails. Forewarned is forearmed. If you are subject to a workplace investigation, I would be inclined to gather all your evidence including work emails before the employer suspends you. Do this discreetly!

Step 5:

Statements:

You have a right to know who has made statements against you.

If an employee or co-worker has made allegations against you, which allegations have led to you being subjected to a disciplinary investigation or disciplinary workplace investigation, then it is incumbent upon you to establish whether those allegations were made either verbally or in writing.

If the complaints against you were made verbally, then you need to email your employer and ask your employer the date, time, and method, viz: under what auspices the complaints were made against you. You could make a Subject Access Request.

For example, if the individual who made complaints against you has not done so in writing themselves, then how can you be sure that the statements taken by the HR Department (third-hand) were a true and accurate reflection of what the person actually stated?

Therefore, if a third party such as the HR Department or manager has taken a statement, then I would get them to sign the statement they have produced on behalf of the aggrieved employee as being a statement of truth as to what was stated. The same applies to the employee or co-worker who has made the complaint against you.

To this end, if the person who has made allegations against you has embellished the truth and/or has lied about what they saw or said, then they will not very likely want to commit to their statement to being a ‘statement of truth’. You can then use this against them at a later date as a matter of credibility.

Moreover, if it is later determined that an individual’s statement was not ‘substantially true’ then you can always consider issuing a ‘pre-action protocol for defamation’ in accordance with the Civil Procedure Rules.

For the avoidance of doubt, in accordance with s.2(1) of The Defamation Act 2013, it is for the person who makes the allegations against you, to prove that that the allegations are ‘substantially true’. If they cannot prove the allegations are ‘substantially true’ it could be libellous.

You could also put the person who was made the allegations against you, on notice, through the HR Department, that if it is subsequently found through the disciplinary process that the statements they made were not ‘substantially true’, then you reserve your legal position to bring claims for either stigmatisation or defamation, especially if the allegations cause your professional reputation ‘serious harm’ in accordance with s.1 of the Defamation Act 2013.

To this end, whilst you don’t want to appear to be intimidating any persons who have made allegations against you, you are within your rights to warn those individuals through the HR Department, that if the allegations, which they have made are found to be vexatious or malicious, that you will be left with no choice in the matter but to lodge a formal complaint (grievance) against those individuals who have made statements against you, and furthermore, to name them as additional named respondents in any claims you may bring to the employment tribunal. This is especially important if your employer has warned you that you could be dismissed for gross misconduct.

The above may appear to be a very heavy-handed approach, but anybody threatened with potential litigation is going to think twice before pursuing allegations against you, especially if there is not much evidence to support the allegations, which had been made against you. As stated above, don’t go on the defensive. Far better in my opinion to go on the attack.

The above may be of particular importance especially where you are being subjected to ‘workplace mobbing’ whereas a group of individuals have made spurious and vexatious allegations against you just to get rid of you because your face doesn’t fit in the Department where you work.

This practice is fairly common, and I see it on a regular basis. Thus, by asking the employer to warn the individuals in writing that if it is found that their allegations are not upheld, that you reserve your legal position to sue them as additional named respondents in the employment tribunal, especially if the allegations significantly influence a disability, which you may have.

For example, I am asthmatic. Stress is one of the triggers for my asthma. Therefore, if a person or a group of people were to make allegations against me, whether or not those allegations had any merit, I would still put those individuals on notice that in the event that their allegations are not upheld, that I would name them as additional named respondents in any claims, which I may bring in the employment tribunal. This would not be a threat, but a fact.

For the avoidance of doubt, individuals who subject you to ‘unfavourable treatment’ or discrimination arising in consequence of a disability are ‘personally liable’ for that discriminatory conduct in accordance with s.110(1)(a)(b)(c)(2) of The Equality Act 2010.

The employer would be vicariously liable for failing to have taken ‘reasonable steps’ to have prevented the discrimination.

If you choose to go down the aforementioned route, I would suggest you get in contact with me before doing so, to assist you in wording your letter in such a way, which does not appear as if you are seeking to intimidate the persons who have raised allegations against you. Tread carefully!

 Step 6:

If, after a disciplinary investigatory meeting has taken place, the HR Department decides to pursue the allegations against you to a full disciplinary hearing, then this is your golden opportunity to ask a series of questions to be put to the individual/s who have made the allegations against you.

If it were me, I would propose a series of questions to each individual who has made allegations against you. I would send those questions to the HR Department in advance of the disciplinary hearing taking place and ask for the answers to those questions in advance of the disciplinary hearing.

For the avoidance of doubt, do not ask questions which elicit a yes or no answer. You want to ask questions, which compel the individual to outline their position.

Example Questions:

Specifically, what did John Doe hear or see on the date in question germane to myself?

Does John Doe agree that he could not have seen or heard the allegations, which have subsequently been made against me, not least because John Doe was not in the meeting room at the material time? if John Doe disagrees, how does he say he could have heard and/or have seen the allegations against me, not least by reason that John Doe was not in the meeting room at the material time?

I require to know, has John Doe been asked to provide a statement, or did John Doe provide a statement of his own volition?

If John Doe was asked to provide a statement, I require to know the name of the persons who asked John Doe to provide a statement?

How do you say the individuals who asked John Doe to provide a statement have not sought to ‘materially influence’ the statement given by John Doe?

How do you say John Doe is not bias?

For the avoidance of doubt, I am asking the HR Department to warn John Doe in writing that in the event his statements are found not to be ‘substantially true’, that I reserve my legal rights to sue John Doe for libel and to name him as an additional named respondent in any claims, which I may bring in the Employment Tribunal, in the event the disciplinary procedures leads to my dismissal for alleged gross misconduct.

The above statement should warn any HR officer working within the HR Department that they need to undertake a thorough disciplinary investigation of all the facts, not least if you have been warned by the HR Department, that you could be dismissed for gross misconduct as part of the disciplinary investigation, hearing and/or outcome.

Step 7:

The problem is that when an individual is subjected to a workplace disciplinary investigation, it is quite natural for the individual to feel emotional and aggrieved as any right-minded thinking person would be.

Tensions often run high in workplace investigations. Therefore, by asking your employer to undertake the disciplinary procedures via written form, it will obviate the need for the procedures to become heated and/or confrontational, which the disciplinary meeting or disciplinary hearing may otherwise become if you were to attend in person.

DON’T ever write anything in anger. If you feel angry, don’t reply until the following day.

Step 8:

Think ahead!

Whenever I write an email or letter, I always think that that email or letter could be seen by a Judge. Therefore, always be seen to be acting reasonably. That is not to say that you have to actually act reasonably, you just need to be ‘seen’ to be acting reasonably!

Don’t make demands.

Be polite in what you write.

Always sign off with ‘yours sincerely’ rather than ‘kind regards’. Keep the letters formal.

Whatever you write be specific in what you want. For example, I have below outlined a bad example of what to write, and a good example of what to write–

Bad Example:

Please can I have access to the allegations which have been made against me?

Good example:

In ensuring a fair and equitable disciplinary process, I require sight of all of the evidence against me, including the names of the persons who have made the allegations, copies of their statements, and the names of any witnesses no less than 5 days in advance of the disciplinary investigatory meeting. To this end, I am asking my employer and the HR Department to not only observe the natural justice, but also to observe the implied term of mutual trust and confidence germane to the disciplinary procedures.

In the bad example above, you are actually asking the HR Department to furnish you with the allegations against you. This is not the route you want to take. You need to be more assertive and specific by saying “I require sight of”. This way, you are not asking or requesting that information, instead you are ‘requiring’ that that information is given to you without unreasonable delay.

I often note when I’m assisting a client going through the disciplinary procedures, that the HR Departments tone becomes less polite as the disciplinary process drags on. For example, at the start of the disciplinary process the employer might address you as “dear” and sign off letters and emails with “kind regards”. However, by the time you get done with the HR Department, I doubt there will be any such niceties or formalities.

Therefore, it is incumbent upon you to keep the tone formal throughout the disciplinary procedures.

Step 9:

The Disciplinary Hearing:

If the notes of the ‘disciplinary investigatory meeting’ were not factually correct, then this will give you ammunition to ask the employer to audio record the disciplinary hearing.

Put shortly, if the employer has failed to take accurate notes during the ‘disciplinary investigatory meeting’, and you have brought that to your employer’s attention previously by pointing out the obvious omissions within the notes taken, then this will pave the way for you to ask for the disciplinary hearing to be audio recorded. After all, in observing the natural justice, it is in both parties interest to have true and accurate notes of the disciplinary hearing.

On my website I have a template for £16.00, which template covers the legalities of making covert recordings, and furthermore, the admissibility of those recordings in the employment tribunal, including case law and case authorities, which you can google.

If you covertly record a disciplinary meeting or disciplinary hearing, you could be dismissed due to a breach of the implied term of mutual trust and confidence, that is, in the event the employer finds out that you have made the recording.

To this end, I would always read the employers policies and procedures in advance of any disciplinary hearing to see if it is mentioned anywhere that you are forbidden from making covert recordings. If the employer is savvy, it will stipulate in the grievance and disciplinary procedures that you are forbidden to make any recordings without the consent of the employer.

Personally, if I were subjected to a disciplinary hearing or workplace investigation, I would always covertly record, not least because in the event you are dismissed, it does not matter that you did not obtain your employer’s consent.

Ultimately, it is for each individual to decide for themselves whether or not to covertly record any disciplinary meetings or disciplinary hearings.

The benefit of making a covert recording, is that in the event the minutes of the disciplinary hearing are factually incorrect, and the matters escalate to the employment tribunal, then you can prove that the employer has acted in bad faith by removing parts of the minutes of the meeting, or where the covert recording will establish that you did object, protest and challenge the evidence or any other matters during the course of the disciplinary hearing.

Personally, I would not trust the HR Department to make accurate notes of what has been stated during the course of the disciplinary hearing. If you are hoping that the HR Department will take true and accurate notes of the disciplinary hearing, you do so at your own peril.

Conclusions:

The key to all of the above, is to make sure that you are on an even footing with the employer, and to ensure that the disciplinary procedures are fair, transparent, and equitable.

When undertaking a disciplinary investigation, it is incumbent upon the employer and the HR Department to observe the natural justice. This means that you have sight of all the evidence and allegations against you in advance of attending any investigatory meeting.

It also means that you have a reasonable amount of time to adduce, digest and elicit the evidence to argue your case and to put forth your case in a constructive, articulate way at the workplace investigatory meeting or disciplinary hearing.

If you feel that the employer has acted (or is acting and in the egregious manner) then please contact me so we can arrange a telephone consultation to discuss where you’re at, and moreover, the next steps. Contact me – samstone@formalgreivance.com

You have to remember that I have trodden the path, which you now tread hundreds of times over the last 11 years with a plethora of clients.

In one case in 2019, I had a client who was suspended from work, accused of fraud, and the police called into investigate. I quickly turned the tables on the employer, submitting a formal grievance letter raising multiple grievances germane to the way in which the disciplinary investigation had been conducted. I have no doubt that the employer was looking to give my client the boot to save them paying him redundancy pay, which would have been a substantial lump of money after 30 years of service. In the end, I turned the tables on the employer; the investigation was subsequently dropped, and my client left with a six figure settlement.

The mistake, which the client had made, was going on the defensive rather than going on the offensive. By taking the fight to the employer and evidencing how the employer had made multiple mistakes during the disciplinary process, I was able to demonstrate how the disciplinary workplace investigation were biased, misconceived and erroneous, whereas my client had been subjected to workplace mobbing because his face no longer fit in the Department where he worked. Thus, the allegations against him were vexatious being malicious falsehoods.

The content of this webpage and website does not amount to legal advice. Sam Stone is not a solicitor. Sam Stone has over 13 years experience working as an employment consultant. Sam works with his wife Amy. Between the two of them, Sam & Amy have helped thousands of clients over the last decade. If you have not already read the testimonials page on this website, Sam and Amy urge you to do so now.

Sam Stone and his wife Amy can write you a custom grievance letter if:

Authorities – Employment Law  – Grievance And Disciplinary Procedure

Employer’s Breach of the Mutual Trust and Confidence

Courtaulds Northern Textiles Ltd v Andrew (1979) IRLR 84.
Two types of conduct relating to a “breach” of the “mutual trust and confidence”: (a) conduct likely to undermine the trust and confidence required if the employment relationship were to continue, and (b) conduct which itself amounted to a repudiatory breach entitling the employee to resign. Conduct amounting to a breach of the implied term would inevitably mean that there had been a fundamental or repudiatory breach.

Morrow v Safeway Stores [2002] IRLR 9
The EAT holds that any breach of the implied duty of trust and confidence will inevitably be repudiatory, entitling the employee to resign and claim constructive dismissal.

Horkulak v Cantor Fitzgerald International [2004] IRLR 942
The Court of Appeal held that threatening to dismiss an employee as to intimidate them, amounted a breach of mutual trust and confidence. The Courts have held that the public reprimand of an employee in a manner accepted by the court as “humiliating” would amount to a breach of the duty of mutual trust and confidence.

Western Excavating (ECC) Ltd v Sharp [1978] ICR 221)
It is an implied term in every contract of employment that the employer “will not, without reasonable and proper cause, conduct himself in a manner calculated or likely to destroy or seriously damage the relationship of confidence and trust between the parties”

Malik v BCCI 1997 IRLR
An employer shall not, without reasonable and proper cause, conduct itself in a manner calculated and likely to destroy or seriously damage the relationship of confidence and trust between employer and employee.

Employers Failure To Render A Fair and Impartial Grievance Procedure

Wigan Borough Council v Davies [1979] ICR 411
An implied term in contracts of employment is that the employer will provide reasonable support to ensure that the employee can carry out his/her duties without harassment or disruption by fellow workers; and where an employer has an obligation to take reasonable steps to achieve something and takes few or no steps, the onus of proving what steps would have been reasonable is on the employer.

Bracebridge Engineering Ltd v Darby [1990] IRLR 3 EAT
A failure to seriously consider a genuine grievance, or to operate an ineffective grievance procedure could be grounds for constructive dismissal.

Goolds v MccOnnell [1995] IRLR 516
The duty to reasonably and promptly afford an opportunity to employees to obtain redress of any grievance they may have.

Employers Failure To Render A Fair and Impartial Disciplinary Procedure

Strouthos v London Underground [2004] IRLR 636
It is required that charges against an employee should be precisely framed, and that the employee should only be found guilty of a charge, which has been [put] to him. The employee should know the allegation against him. Where the employer has not put it squarely to him, it is sufficient if the employee knows the [substance] of the charges to make the procedure fair. This is outlined in the precedent case below.

Spink -v- Express Foods Limited [1990] IRLR 320
“It is a fundamental part of a fair disciplinary procedure that an employee know the case against him. Fairness requires that someone accused should know the case to be met; should hear or be told the important parts of the evidence in support of that case; should have an opportunity to criticise or dispute that evidence and to adduce his own evidence and argue his case.”

British Home Stores -v- Burchell 1980 ICR 303
The Burchell test requires the employer to apply a three stage test, AND must have a [genuine belief ]of the employee’s misconduct, based on [reasonable grounds] after having carried out as much investigation as was reasonable in all the circumstances.
1. First of all, it must be [established] by the employer the fact of that belief; that the employer did believe it.
2. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief.
3. Thirdly, the employer, at the stage at which it formed that belief on those grounds {at any rate at the final stage at which it formed that belief on those grounds} had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.

“It is for the employer to satisfy the Tribunal that the dismissal was for a potentially fair reason within Section 98(2) of the Employment Rights Act 1996. If that hurdle is overcome, the Tribunal then needs to be satisfied whether the employer [acted reasonably] in [all the circumstances of the case] in dismissing the employee following the guidance in BHS v Burchell. The test is a well known three stage test. It is for the employer, at the time of dismissal, to be satisfied that a reasonable and thorough investigation had taken place and that there was a genuine belief of the misconduct based on that investigation.”

Sainsbury’s Supermarket v Hitt [2002] EWCA Civ 1588
“The [range of reasonable responses] test (as set out in Midland Bank plc v Madden 2000 ICR 1283, CA) applies not only for the purpose of determining whether it was procedurally or substantively fair or unfair for an employer to dismiss an employee but also for the purpose of determining whether investigations carried out by the employer were reasonable in all the circumstances. The Court of Appeal made it clear that the “range of reasonable responses” test applies to each of the three branches of the “British Home Stores v Burchell EAT 1980″ test and therefore applies to the issues of reasonable belief and adequate investigation.”

Celebi v Scolarest Compass Group UK & Ireland Ltd UKEAT/0032/10/LA (Theft)
Fairness requires that an employee should only face disciplinary action in respect of misconduct with which they have been charged:- accordingly, dismissal for an [act of misconduct] not mentioned in the disciplinary letter is [unfair].

Bentley Engineering Co Ltd -v- Mistry [1979] ICR 47
Employers disciplinary proceedings require that an employee should have a chance to state his own case [and] to know sufficiently what was being said against him, so that he could put forward his own case properly, and have a chance to state his own case in detail. The employee must know in one way or another sufficiently what is being said against him. If the employee does not know sufficiently what is being said against him, he cannot properly put forward his own case [Natural Justice]. This encompasses the employee either being allowed to see witness statements against him [or] be allowed to listen to what witnesses have to say about him.

Don’t Like it –  **** Off

Palmanor Ltd v Cedron, EAT 1978 IRLR 303
“Mr Cedron was employed as a barman at a night-club. During the course of his duties he had a row with his employers and a manager swore at him. Mr Cedron pulled the manager up over his language and was told that if he did not like the words being used he could go. Mr Cedron took this as an invitation to leave. An industrial tribunal took the view that Mr Cedron was entitled to treat himself as constructively dismissed, within the meaning of paragraph 5 (2) of Schedule 1 to the Trade Union and Labour Relations Act 1974, and that the [dismissal was unfair].

O’Neil v Wooldridge Ecotec Ltd UKEAT/0282/07
O’Neil swore at his line manager. The line manager then discussed the incident with other work colleagues before deciding to dismiss. O’Neil was summarily dismissed the next day. However, the letter confirming his dismissal [although it told him of his right to appeal] did not explain the reason why he had been dismissed. The EAT subsequently allowed O’Neil’s appeal. As O’Neil was not dismissed [immediately] – and the letter which was sent did not fulfill the statutory requirements, the standard statutory dismissal procedure should have been followed. As it had not been, the dismissal was [automatically unfair].

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