Managing staff complaints, workplace investigations and disciplinary processes fairly and reasonably is crucial for all organisations; not only to ensure a positive workplace culture and good staff morale, but also to minimise legal risk for the business. 

Though most organisations will have relevant policies and procedures in place, key considerations to bear in mind are whether those policies and procedures are fit for purpose, and whether they are being adhered to appropriately. Failure in either case can have significant adverse consequences for employers, not only from a legal perspective but also from a reputational perspective.

The recent case of Ahmed v United Lincolnshire Hospitals NHS Trust and Others (ET) 2600767/2020, provides a salutary warning in this regard. In that case, an employee was awarded £256,000 in compensation, following flawed investigation and disciplinary processes – during which an HR Director alleged that he was “playing the race card” – which led to his dismissal. Both the investigation and the disciplinary processes were found to be deeply flawed, procedurally unfair, and potentially discriminatory.

We take a closer look at the case below and explore the key lessons for employers.

What happened in the Ahmed case?

Professor Ahmed worked for the United Lincolnshire Hospitals NHS Trust for 16 years, with an unblemished record, as Director of Clinical Research and Director of Research and Innovation. He also chaired the Trust’s Black, Asian and Minority Ethnic (“BAME”) staff network. Professor Ahmed is of Asian and Pakistani background and is Muslim.

In June 2018, a member of Professor Ahmed’s team resigned from their role and raised a complaint in which she alleged that he had bullied and harassed her and other colleagues on various occasions dating as far back as 2014. Professor Ahmed was told that allegations had been made but was not given the details.

An investigation commenced in February 2019. Professor Ahmed’s position was that the allegations were unfounded, malicious, vexatious, and likely “revenge” for the fact that he had performance managed the complainant. He also said that he did not understand why he was being investigated, and suggested that it may be because of his ethnicity. The investigator responded that this was an inappropriate comment and later said that she found it intimidating and upsetting. Professor Ahmed said that he was sad to learn of the allegations and indicated that he was keen to learn from any mistakes he had made and improve and/or apologise as needed.

During the investigation process, the Trust obtained evidence from a number of colleagues who worked, or had worked, in Professor Ahmed’s department (some of whom had left 5 to 10 years prior). The investigator took the approach of only speaking to witnesses who supported the allegations. Professor Ahmed’s Personal Assistant (with whom he worked closely), a number of his other direct reports, and witnesses that had been suggested by him, were not interviewed. 

In April 2019, the investigation report found that there was evidence of bullying and harassment by Professor Ahmed but took the view that this was a developmental rather than disciplinary issue.  It commented that Professor Ahmed held an “incredibly strong belief” that the allegations against him were racist in nature and speculated that he would likely view any sanction or action taken as being discriminatory. The report concluded that a development plan would be an appropriate outcome. 

Professor Ahmed’s Line Manager reviewed the report, and sought advice from the Trust’s HR Director, about implementing a development plan. However, the HR Director (with whom Professor Ahmed had previously raised unrelated complaints about bullying and racism) recommended that the matter be escalated to a disciplinary hearing. During this process, the HR Director also commented, in an email to the Line Manager, “[he] will play the race card I suspect”. 

In May 2019 Professor Ahmed was signed off work with stress. He also raised a whistleblowing complaint, alleging discrimination against him and other BAME staff.

In the lead up to the disciplinary hearing, Professor Ahmed provided comprehensive documentary evidence supporting his case and challenging the allegations against him. He also requested that a number of witnesses be called on his behalf. The majority of these witnesses were refused by the Trust.    

In November 2019, the disciplinary hearing took place over the course of three and a half days. The disciplinary panel gave little weight to the documentary and witness evidence provided by Professor Ahmed and his representative. It concluded that Professor Ahmed had shown a lack of insight, sympathy, empathy or remorse, and that he was guilty of gross misconduct. 

Professor Ahmed was summarily dismissed in December 2019. Though he appealed the decision, it was upheld. He subsequently brought claims against the Trust, in the Employment Tribunal (“Tribunal”), for unfair dismissal, race discrimination and victimisation.

The Employment Tribunal’s decision

The Tribunal upheld Professor Ahmed’s claims. It found that there had been numerous flaws in the investigation and disciplinary processes, including that:

  • There were significant and unacceptable delays in the investigation process, which was “lackadaisical”. Professor Ahmed was unaware of the precise nature of the allegations against him until he received a copy of the investigation report in June 2019 – almost a year after allegations were first raised. This was a breach of the Trust’s own procedures, but also the principles of natural justice.    
  • The investigation report (which took 10 months to produce) was biased. It only included evidence from people who supported the allegations (all of whom did not work in Professor Ahmed’s department and/or had left the Trust 5 to 10 years prior).  Much of the evidence relied on was hearsay and historical in nature. No exculpatory evidence was considered, including from Professor Ahmed’s Personal Assistant (who described the allegations as “laughable”) and other witnesses suggested by him.  Many of the allegations were subsequently disproved.
  • Professor Ahmed’s concerns that the allegations against him, and/or the investigation into these, may be racially motivated were dismissed out of hand and not actively investigated. The Tribunal drew adverse inferences from this.
  • The investigation process was not reasonable. It was one-sided, inadequate, in breach of the Trust’s policies and procedures, and in breach of the ACAS Code.
  • Despite the fact that the investigation report had found that Professor Ahmed’s actions were not malicious and had recommended that the outcome of the investigation should be a development plan (a view which was shared by Professor Ahmed’s Line Manager), the matter had nonetheless been escalated to a disciplinary hearing. This was despite the fact that most of the allegations were historical, none of the witnesses remained in Professor Ahmed’s department, and some had left the Trust 5 to 10 years prior. The investigator’s recommendations were “completely disregarded”, and the Trust failed to consider its own Dignity at Work Policy, which provided for an informal approach in the first instance. 
  • The HR Director’s comment about “playing the race card” “took matters on a completely different track” – away from a development plan and towards a disciplinary hearing. Notably, this change of direction occurred after Professor Ahmed had raised allegations of bullying and discrimination by HR. It was also notable that the HR Director was not called as a witness during the Tribunal hearing.  Again, the Tribunal drew adverse inferences from this.
  • Prior to the disciplinary hearing, the Trust’s witnesses had been briefed and provided questions in advance and were encouraged to attend. This was not the case for Professor Ahmed’s witnesses. This fact was not fully disclosed until the Tribunal hearing, despite Professor Ahmed having made a data subject access request.
  • The disciplinary hearing was set up in such a way that indicated that the outcome was a foregone conclusion. Professor Ahmed’s representative was not permitted to make eye contact with witnesses or question them directly, and his closing submissions were cut short. The Trust’s witnesses were coached in their evidence by the investigating manager, who was also allowed to present closing submissions in full. “The playing field was far from even”.
  • The disciplinary panel failed to take into consideration the fact that many of the Trust’s witnesses were undergoing performance management processes. This was relevant to the issue of credibility but also provided a potential explanation for their support of the allegations against him. The panel also failed to take into consideration documentary evidence disproving many of the allegations. This was “puzzling”.  “There was no balance or objectivity”.
  • In reaching the conclusion that Professor Ahmed had failed to show insight, sympathy, empathy or remorse, the disciplinary panel had failed to consider whether it would have been reasonable for Professor Ahmed to do so. In the Tribunal’s view, he was entitled to his opinion that the allegations against him were unfounded and retaliatory, and he had in any event expressed that he felt sad about them. He had also acknowledged that he needed professional development and had agreed to undertake coaching. The panel had placed “an unusual amount of emphasis on [Professor Ahmed’s] “lack of remorse or regret””. 
  • The disciplinary panel failed to consider alternatives to dismissal, such as training or development (which had been the initial recommendation of the investigation report, and the view of Professor Ahmed’s Line Manager). It also failed to give appropriate weight to Professor Ahmed’s length of service and unblemished record.

In fact, the Tribunal found that the investigation and disciplinary procedures had been mishandled at almost every stage, and their outcome was a forgone conclusion. The Tribunal commented that the decision to dismiss was “entirely biased” and said that it “[could not] see how [the Trust] legitimately concluded that [Professor Ahmed] was guilty of gross misconduct” and “[could not], therefore, conclude on the balance of probabilities that race had nothing whatsoever to do with his dismissal”.

Professor Ahmed was subsequently awarded £256,032 in compensation, comprising of:

  • A basic award for unfair dismissal, of £11,288.
  • A payment for loss of statutory rights, of £500.
  • Compensation for loss of earnings, of £163,834.
  • Compensation for loss of pension, of £80,410.

The Trust also issued a public apology for failings in its internal process.

Key lessons for employers

We have set out some key take-away points from the Ahmed case, that employers should bear in mind when conducting investigations and disciplinary processes:

  1. Having a clear and reasonable Disciplinary Policy in place, which is consistently adhered to by managers, is essential. That policy should not only comply with the “principles of natural justice” identified by the Tribunal in the Ahmed case; it should also comply with the ACAS Code on Disciplinary and Grievance Procedures (bearing in mind that if the ACAS Code is breached, the Tribunal has the power to uplift any compensation awarded by up to 25%). Managers should receive regular training and be encouraged to comply with the policy consistently to ensure fairness.
  2. Procedural fairness requires that any investigation is reasonable. This will usually include starting the investigation promptly (so that witness memory doesn’t fade) and avoiding lengthy delays. It will necessitate informing the individual of the precise nature of the allegations being made against them, so that they can respond.  It will also mean finding and considering evidence both for and against the allegations being made and ensuring that the credibility of evidence is considered.  Failure to do so is likely to lead to a biased, or one-sided, investigation; as was the case in Ahmed.
  3. Don’t ignore allegations of discrimination raised during an investigation or disciplinary process. In the Ahmed case, the Tribunal drew adverse inferences from the fact that Professor Ahmed had raised concerns that the allegations / investigation against him was racially motivated, but those concerns had been dismissed out of hand and effectively ignored by the employer.
  4. Beware of partiality. A fair process will usually necessitate that each stage is carried out by someone impartial who has not previously been involved or implicated in any of the matters to be determined. In the Ahmed case, the Tribunal drew adverse inferences from the fact that the course of the process changed from developmental action to disciplinary action, on the advice of an HR Director to whom Professor Ahmed had raised complaints about bullying and race discrimination by the HR Team (and who himself had made an inappropriate comment about “playing the race card”). A fair process will also necessitate that the individual is given adequate opportunity to understand and respond to the allegations against them, before a final decision is made. In the Ahmed case, the Tribunal criticised the employer for taking a biased approach, not allowing an “even playing field”, and effectively reaching a decision before the conclusion of the process.
  5. The fact that an individual doesn’t show remorse or accept that their behaviour constitutes misconduct will not, in and of itself, be sufficient to merit dismissal. In the Ahmed case, the Tribunal commented that Professor Ahmed was entitled to his opinion that the allegations against him were retaliatory and unfounded, and he had in any event expressed remorse / regret about them. The Tribunal commented that the disciplinary panel had placed an unusual amount of emphasis on Professor Ahmed’s apparent lack of remorse or regret. This position tallies with that in a number of other recent cases, including Hewston v Ofsted and Higgs v Farmor’s School.

If your organisation needs further advice on any of the issues outlined in this article, please get in touch and our team of experienced Employment Lawyers would be happy to help.

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The material in this article is provided for guidance and general information only and is not intended to constitute legal or other professional advice upon which you should rely. In particular, the information should not be used as a substitute for a full and proper consultation with a suitably qualified professional. Please do contact the Bates Wells team if you require further information.