Investigations – Taking a Holistic View

by NineInchNachosIII

Article by Kate Russell

When carrying out an investigation, employers must look at misconduct allegations in wider context. A failure to do so can result in a finding of unfair dismissal. This was considered in the case of Aslam v BBC [2010]

Ms Aslam joined the BBC as a radio producer in its World Service Urdu section in 2004. Problems arose in the section and in August 2007, the employer investigated the issues. The findings were fed back to managers in December 2007, but only disclosed to staff in an edited form. The recommendations were only partially implemented.

Over the course of the next few months Ms Aslam was involved in a number of disputes in the department and in December 2008, she complained of a harassment. Tensions increased. Ms Aslam attended a briefing about restructuring on behalf of the NUJ, and was said to have asked questions and been "unusually aggressive".

In February 2009, Ms Aslam alleged that another colleague was receiving preferential treatment. A few days later, there was an altercation in the open-plan office during which Ms Aslam raised her voice.

Ms Aslam was suspended in March, because of a complaint of bullying and harassment. The person who made the complaint, Ms Hussain, was interviewed. An edited version of the notes were sent to Ms Aslam and were used by Ms North in the later disciplinary proceedings. They excluded Ms Hussain's wider complaints about people other than Ms Aslam.

Ms Aslam submitted a grievance complaining that her suspension without any prior warning had been "intimidating and tormenting" and was in stark contrast to the employer's lack of response to her own complaint about bullying and harassment in December 2008. The employer dealt with the disciplinary investigation and the grievance separately.

Ms North chaired the discipline hearing and concluded that the case against Ms Aslam had been substantiated. She upheld the general accusations that Ms Aslam's behaviour was bullying and intimidating to colleagues, rejecting her r! esponse that she had engaged in robust disagreements on editorial issues. Ms North also upheld the allegation of bullying Ms Hussain over a period of time. She concluded that Ms Aslam's actions were a fundamental breach of contract amounting to gross misconduct and dismissed her with immediate effect. Ms Aslam's appeal against dismissal was unsuccessful. Separately, her grievance was investigated but dismissed. She complained that the dismissal was unfair.

The tribunal accepted that the employer genuinely believed that Ms Aslam was guilty of bullying, but was not satisfied that Ms North's investigation fairly reflected the context of the employee's behaviour. It felt that Ms North might have thought that the issue was one that merited conciliation through the bullying procedure, rather than discipline, had she been able to consider:

1. more of the history between Ms Aslam and Ms Hussain;

2. the long-standing perceived unfairness about the rota system;

3. the inference of nepotism to be drawn from the Krizman report;

4. the resentment and perceived implications of Ms Hussain's link with Mr Mirza; and

5. Ms Hussain's wider allegations against "union activists".

The tribunal said it was "extremely unfortunate" that Ms Aslam's grievance (which concerned the manner of and reason for her suspension) was dealt with separately because "it meant that the wider issues raised there were not known to Ms North". Had Ms North been aware of those issues, Ms Aslam's high level of anger might have appeared more understandable. The separation also meant that Ms Aslam had to make points twice over, or be "told that points she made were not relevant as they concerned the other investigation".

Although by shouting at colleagues Ms Aslam undoubtedly overstepped the mark, the tribunal noted that "people did shout at each other on this section" and was not satisfied that the conclusions reached about Ms Aslam's behaviour were justified. The tribunal found that, even! if the conclusions had been justified, a fair and reasonable employer would not have dismissed her.

Upholding the complaint of unfair dismissal, the tribunal said that, since Ms Aslam had not received even an informal warning prior to her dismissal, her behaviour had to be such as to breach the fundamental term of trust and confidence to merit dismissal. It found that her behaviour was not serious enough for that.

A fair investigation by a fair-minded employer would have resulted in a warning that the employee needed to modify her behaviour, or some form of conciliation through the bullying procedure, or a requirement for stronger leadership as to what was and was not acceptable behaviour for all staff on the section. The deficiencies of the investigation were not cured by the appeal process. The fact that the grievance appeal and the dismissal appeal ran in parallel perpetuated the employer's lack of understanding of the situation.

Kate Russell is the author of How to Get Top Marks in … Tackling Workplace Investigations.

Russell HR Consulting provides expert knowledge in the practical application of employment law as well as providing employment law training and HR support services. For more information, visit our website at http://www.russellhrconsulting.co.uk or call a member of the team on 0845 644 8955.

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About the Author

Kate Russell started Russell HR Consulting in 1998 and now divides her time between advising businesses of all sizes on HR issues, and delivering a range of highly practical employment law awareness training to line managers, including a range of public workshops. Her unique combination of legal background, direct line management experience and HR skills, enables Kate to present the stringent requirements of the law balanced against the realities of working life. She is a senior presenter for several companies and a popular public speaker. Kate completed an MA in strategic human resource management in 2004.

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