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Criticising investigations

Investigations are a common battleground in unfair dismissal cases, particularly where an employee is accused of misconduct. Employers have to carry out a reasonable investigation and failure to do so may make a dismissal unfair. Often, therefore, the employee will argue that the investigation was inadequate or flawed.

The most persuasive way of making this sort of argument is to identify a specific problem with the investigation. Normally this will be something that the employer should have done, but didn’t. For example ‘they refused to interview Sam, who saw everything’ or ‘they didn’t look at the CCTV that recorded the incident’. It might also be something they did, but shouldn’t have. For example, ‘they took statements from Kevin and Mary, who were just repeating what they’d heard from Phil’.

The unpersuasive way of making this sort of argument is make general negative remarks about the investigation. For example ‘the investigation was cursory’ or ‘they didn’t really investigate properly’. This doesn’t really take you any further. ‘The investigation was unreasonable, because it was cursory’ basically means ‘the investigation was unreasonable, because it was unreasonable’. To be persuasive, you need to go on, to identify exactly where the investigation fell short. If you can’t, you probably need to think hard about whether the investigation was unreasonable.

It is sometimes a useful exercise to imagine how you would have investigated, had you been in the employer’s position. Who would you have spoken too? What evidence would you have wanted to see?

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