With employment tribunal cases rising and employees more aware of their rights when it comes to reporting and being the subject of workplace malpractice, it has never been more essential that managers and HR staff are aware of the legislation and best practice surrounding employment investigations.
1. How common are employment disputes in the UK?
Government tribunal statistics from June this year reveal that there is a growing employment tribunal backlog. The Ministry of Justice reported 45,000 single claims open at the end of March 2025 - up by 32% compared to the same January to March period in 2023/24.
The sheer numbers of open cases show us that employment disputes are not rare. In fact, over 43% of employees reported having observed or experienced illegal or inappropriate behaviour in a survey for The HR Director in 2024.
2. Why should HR and line managers be informed about conduct employment investigations?
According to a Safecall survey cited by Personnel Today in December 2024, almost all (94%) of UK employees would be willing to report workplace malpractice, while 67% reported knowing how to do so.
With numbers this high, HR and line managers can expect reports of misconduct and conflict to rise and therefore need to be prepared to conduct thorough and careful investigations. While thorough investigations may be time-consuming and expensive, there is no benefit in dragging them out due to poor process or increasing the risk of reputational or financial repercussions through a flawed investigation.
It is also critical that investigations consider the potential for prejudice, for example by gender, age, and ethnicity, and are conducted with fairness and consistency.
3. Mr O Nayfeh v Barclays Bank UK PLC: case study on employment investigations
The recent case of Mr O Nayfeh v Barclays Bank UK PLC:8002162/2024 highlighted the importance of conducting watertight disciplinary investigations, with Judge M Whitcombe concluding that Barclays’ “disciplinary hearing and decision making leading to dismissal were so seriously flawed that the respondent failed to satisfy the second and third elements of the BHS v Burchell test and the procedure fell well outside the range of reasonable procedures”.
The case concerned accusations that Omar Nayfeh had made inappropriate sexual comments to two female colleagues, leading to dismissal without notice for gross misconduct in July 2024.
The judge found the dismissal unfair on the grounds that the accusations had not been properly investigated and that a conclusion had been drawn more on speculation than a finding of fact. However, the tribunal reduced any compensatory award by 15% to reflect the claimant’s contributory fault and by a further 50% to reflect the fact that the claimant may have been dismissed anyway had the respondent acted fairly.
In other words, the finding that the claimant had been unfairly dismissed was not because he was proven innocent of the accusations but because the process by which he was dismissed was unfair and had failed to prove his culpability on the two more serious claims. “I recognise that if a fair investigation had been carried out then more cogent evidence of the claimant’s guilt might have emerged, as well as more cogent evidence of innocence,” the judge said. “Both are possibilities. I also recognise that the respondent might well have concluded that there had been gross misconduct even if it had concluded that fewer than three charges were proved.”
While Barclays had a “zero tolerance” policy in place for such behaviour, the judge pointed out that summary dismissal for a first offence was not the only possible sanction. “The respondent might have considered other disciplinary penalties sufficient to mark the seriousness of the misconduct and to give effect to a principle of ‘zero tolerance’, but which allowed the claimant to remain in employment,” he said.
The judge also criticised the length of time the investigation took, dismissing the respondent’s argument that the delay had been caused by a need to perfect the drafting of the decision and wait for HR approval. “The drafting is far from perfect, and she also said that ‘I never rush a decision’, which is inconsistent,” he said. “I find that the decision is likely to have been made much later, and that the fading of memories and impressions caused by delay also compromised fairness.”
To emphasise his point on timeliness, he added later, “There was so much delay in the process that I do not think that a fair procedure would have taken any longer. On the contrary, I think it would have taken much less time.”
This tribunal decision highlights the weakened position that an employer is put in when they fail to conduct a robust investigation. Robust and lawful investigations not only guard an employer, at the earliest opportunity, from making the wrong decision, but they enable employers to defend their decision later down the line.