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The Post Office Horizon inquiry and the importance of impartial investigations

Posted: 10/05/2024

Anyone with even a passing interest in current events will have witnessed the evidence that has come out of the Post Office Horizon public inquiry with a degree of concern and astonishment. The inquiry is tasked with investigating the failures which resulted in multiple miscarriages of justice against sub-postmasters and sub-postmistresses.

It has highlighted deeply flawed evidence from senior Post Office employees and their third-party, so-called ‘experts’, which is now being publicly scrutinised, with electronic documents created many years ago, and the background to those documents, being forensically reviewed through cross-examination. While it has been excruciating to watch in relation to those giving evidence, the whole ordeal has been far worse for those that suffered the miscarriages of justice that arose in the first place.

While the sub-postmasters and sub-postmistresses in the Horizon computer scandal were not employees of the Post Office, the question nonetheless arises as to what duties might be owed by an employer to its employees, including with regard to carrying out an investigation and any subsequent disciplinary process.

At the outset, an employer owes to its employees an implied contractual duty of care. The duty of care has a number of different facets, one of which is to operate a reasonably safe system of work. Such a system includes a duty to carry out investigations in a reasonable way, including complying with any relevant legal obligations in relation to the investigation.

The cross-examination of the Post Office employees (the executives and internal legal team) has provided evidence suggesting an institutional failure to reasonably consider that the Horizon computer system may have been the cause of alleged branch cash errors. It is also notable that there are various allegations that the Post Office did not comply with its disclosure obligations and was complicit in asking witnesses to amend their evidence.

Further, in relation to the law of unfair dismissal, when carrying out a reasonable investigation and disciplinary procedure, in order to be able to have a good, arguable defence to an unfair dismissal claim, it is necessary for an employer to comply with the obligations in the Acas Code of Practice on disciplinary and grievance procedures.

The code requires employers to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. If it is decided that there is a disciplinary case to answer, the employee under investigation should be notified of this in writing. This notification should contain sufficient information about the alleged misconduct, and its possible consequences, to enable the employee to prepare to answer the case at a disciplinary meeting.

The Acas code is clear that, where practicable, different people should carry out the investigation and any subsequent disciplinary hearing (in order to try and ensure a degree of independence in the process), and that an investigatory meeting should not by itself result in any disciplinary action. In some cases, it might be felt that it is best to appoint an external investigator to undertake the investigation process (as happened recently in the investigation into allegations of inappropriate behaviour by Christian Horner at the Red Bull motor racing team – but that case also shows that having an independent external investigator does not make an employer immune from criticism).

If, following a disciplinary investigation, it is decided to proceed to a disciplinary hearing, the Acas code is clear on the procedure to be followed. It is normally appropriate to provide copies of any written evidence, which may include any witness statements, to the employee. At the disciplinary hearing, the employee has the right to be accompanied by a fellow worker, a trade union representative, or an official employed by a trade union. The employer should explain the complaint against the employee, and go through the evidence that has been gathered. The employee should be allowed to set out their case and answer any allegations that have been made, and also be given a reasonable opportunity to ask questions, present evidence and call relevant witnesses. They should also have an opportunity to raise points about any information provided by witnesses.

Once the disciplinary meeting has concluded, a reasonable decision should be made on the balance of probabilities, with the general caveat that the more serious an allegation, the more cogent the proof will need to be to substantiate it.

It is a notable feature of the Post Office case that there was a reluctance to provide those under investigation with the evidence that they needed to be able to defend themselves against the serious allegations of theft that they were facing, together with a seeming general attitude of non-cooperation from the Post Office, including complaints from its legal team when those under investigation requested information that they were entitled to have.

Moreover, the Post Office was seemingly at pains to ensure that there would be no criticism of the Horizon computer system. In short, it appears that there have been very many flaws in the Post Office’s investigation process.

Employers have to act reasonably in relation to investigations and disciplinary cases. They should document as much of the process as possible and be prepared to be cross-examined in relation to that documentation. If they act reasonably and consider disciplinary cases as objectively as possible before deciding on an outcome, they are likely to have a good, arguable defence to claims, as well as a much greater chance of avoiding the sort of front-page news generated in the Post Office Horizon inquiry.

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Penningtons Manches Cooper LLP

Penningtons Manches Cooper LLP is a limited liability partnership registered in England and Wales with registered number OC311575 and is authorised and regulated by the Solicitors Regulation Authority under number 419867.

Penningtons Manches Cooper LLP