Ideal Investigations

If an employee engages in serious misconduct, the starting point is to carry out an investigation to establish the facts. To ensure impartiality, the investigation should be carried out by someone other than a potential disciplining officer. To gain insight into what’s required of employers, it can be useful to review tribunal decisions.

In one case an employment tribunal found that an employee was unfairly dismissed after they had carried out a hurried and incorrect disciplinary procedure. The employer in this case was GFI Software Ltd, a global computer security software company. Mr. Unlu worked for the company and was based in Staines in the UK.

Following a series of concers culminating in a formal sanction, Mr. Unlu became embroiled in a verbal altercation with a colleague based in Germany, Ms Kemski, on 21st November 2008. Ms Kemski complained to Mr. Unlu’s manager, Mr. Harvey, and the following day, Mr. Harvey emailed four senior managers setting out his intention “to move to the correct conclusion” quickly and efficiently, bearing in mind that “Germany is our top performing region”.

The email included Mr. Wilson, who would have acted as an appeal officer. At about 8pm on 22nd, Mr. Unlu called Ms Kemski on her mobile phone, allegedly to return a missed call from her number. Ms Kemski said that she had not called him and told her manager that she felt that Mr. Unlu was trying to scare her. The Head of HR, Ms Trigona, investigated, carrying out enquiries by telephone from Malta.

Her notes recorded Ms Kemski’s concern that Mr. Unlu “would send someone from the Mafia”; that he had threatened to “get his cousins over from Turkey” to beat up his former manager; and her description of him as a “psycho”. Ms Trigona drafted Ms Kemski’s statement. She included the allegation about the violent cousins but not the Mafia allegation and the “psycho” description, which meant that Mr. Unlu could not challenge them. The disciplinary hearing took place in Staines on 27 November 2008.

Mr. Harvey was present and Ms Trigona participated by speakerphone from Malta. The notes of the meeting did not properly probe and explore what had been said between Mr. Unlu and Ms Kemski. Mr. Unlu accepted that Ms Kemski had been distressed because he had used the German word “verwirrt” which (as an interpreter explained to the tribunal) can mean either “unclear” or “mentally unstable”.

He stated that Ms Kemski had told him that a complaint from her could lead to his dismissal, because he was on a final warning. This was not investigated. Mr. Unlu was dismissed by Ms Trigona for addressing Ms Kemski “in an aggressive, hostile and harassing manner”. He complained that he had been unfairly dismissed. The employment tribunal agreed and found that there were a number of flaws in the employer’s process. Firstly, Ms Trigona had taken more than one role. She had been involved as friend or advocate to Ms Kemski; she was the investigation officer; she decided whether or not there was a case to answer; she also made the decision to dismiss at the disciplinary hearing.

The second concern was Ms Kemski’s statement. Mr. Unlu was dismissed on the basis of a statement drafted by Ms Trigona. Ms Kemski had not seen it. It had been read to her over the phone in a foreign language. This was not a reasonable way to handle evidence which could lead to a dismissal. The tribunal also considered that Ms Trigona had been selective in the way she edited Ms Kemski’s statement. Thirdly, GFI was aware at the time of the difficulties in the sales team but made no effort to investigate.

It did not interview Mr. Erlich, who (at Ms Kemski’s request) had witnessed the second conversation with Mr. Unlu on 21 November. It did not investigate the “silent phone call”, even though Mr. Unlu told the hearing that he could prove from his Blackberry records that he had responded to a call from Ms Kemski. Ms Trigona did not explore Mr. Unlu’s use of the word “verwirrt”, nor the “violent cousins” allegation. The tribunal considered that she should have investigated:

Lastly, the tribunal took the view that the investigation took place with unseemly haste. The incident occurred on a Friday and the disciplinary hearing took place the following Thursday. It concluded that the company knew from an early stage that the outcome would be dismissal, and it wanted to limit damage in a major business area.

Between 21st November and the date of the hearing, Mr. Unlu had to arrange representation, reply to the allegations against him (writing in his third language) and travel to England. The tribunal observed that a disciplinary meeting at which an employee’s future is at stake has not been conducted fairly where the decision-maker has engaged with the employee purely by telephone.

Unlu v GFI Software Ltd [2009] The Unlu case highlights some common mistakes. Remember to follow your procedure, keep an open mind and don’t assume that the employee is guilty at the investigation stage; and conduct the investigation in a timely fashion, but not with undue haste.

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