Although the employer successfully defended the unfair dismissal claim in Lamb v Teva UK Ltd[1], the decision is not a licence to take a relaxed approach to disciplinary investigations. The decision is a useful reminder that minor procedural flaws may not always be fatal, but employers should still approach disciplinary investigations with care.
The claimant was dismissed following a serious health and safety incident involving a faulty forklift charger. He argued that the dismissal was unfair due to alleged investigative flaws, including that: (1) the investigator and the note taker in the investigation also gave witness evidence; (2) material evidence was provided less than 24 hours before the disciplinary hearing; and (3) alleged comments made by the investigator suggested a predetermined outcome. The EAT dismissed the appeal, but its reasoning was careful and fact sensitive.
Quick employer takeaways
- A successful defence does not mean procedural flaws are risk-free.
- Investigations should be fair, balanced and proportionate to the seriousness of the allegation.
- Avoid using an investigator who is also a key witness, where possible.
- Give the employee clear allegations, relevant evidence and a meaningful chance to respond.
Use the Acas Code and guidance as a practical checklist.
Lesson 1: a fair investigation does not have to be perfect, but it must be substantively fair
The EAT made clear that employers are not expected to conduct workplace investigations as though they were criminal or civil proceedings. However, they must carry out a fair and reasonable investigation, proportionate to the seriousness of the allegation.
The practical lesson is that employers should focus on substantive industrial fairness. The investigation should be even-handed and should consider material which may undermine, as well as support, the allegation.
Employers should also keep the statutory fairness test[2] in mind. The issue is whether the employer acted reasonably in all the circumstances, but a fundamentally unfair process cannot be rescued by saying that the outcome was within the range of reasonable responses.
Lesson 2: the employee must know the case against them
One of the judge’s central points was that the core principles of natural justice remain essential: the employee should know the nature of the accusation, have a proper opportunity to state their case, and have the matter determined in good faith.
For employers, this means disciplinary allegations should be framed clearly and in writing. The employee should be given enough information to understand the case and respond meaningfully, often including witness statements or relevant documents.
Lesson 3: be careful where the investigator is also a witness
The decision is reassuring because it confirms that slight procedural flaws will not necessarily undermine the fairness of a misconduct dismissal. In this case, the investigator had also provided a witness statement, but that did not make the dismissal unfair.
However, the conclusion depended on the facts. The investigator’s witness evidence was relatively minor, the employee did not materially challenge it at the disciplinary stage, and the dismissal decision was made by a separate manager.
If the proposed investigator is also a key witness, has significant prior involvement, or may be perceived as conflicted, the safer course is to appoint someone else, particularly where the evidence is disputed or dismissal is a realistic possibility.
Lesson 4: late evidence should be handled carefully
The EAT did not find that late evidence made the dismissal unfair. However, employers should not assume late disclosure will always be acceptable. If new evidence materially strengthens the case, they should consider whether the employee needs more time, whether the hearing should be postponed, or whether further investigation is required.
Lesson 5: read and follow the Acas materials
The judge placed real emphasis on the Acas Code of Practice on Disciplinary and Grievance Procedures and the Acas Guide on Conducting Investigations in the Workplace, describing the Code as clear, concise and deserving of regular careful reading.
Employers should treat the Acas materials as a practical checklist. Investigations should be prompt, objective and fair; employees should understand the basis of the problem and have a proper chance to respond; and, where practicable, different people should handle the investigation, disciplinary decision and appeal.
Overall, Lamb v Teva UK Ltd is helpful for employers, but it is not a green light for casual investigations. The employer won because, viewed in the round, the process was still substantively fair. The safer lesson is to design disciplinary investigations carefully from the outset: appoint an appropriate investigator, define the allegations clearly, share the relevant evidence, give the employee a meaningful opportunity to respond, and use the Acas materials as a guide throughout.
In more complex or sensitive cases, employers may also wish to consider outsourcing the investigation or appointing an external investigator to provide additional independence, expertise and reassurance about the fairness of the process.
If you would like to discuss any of the issues raised in this article, please contact Ed Henderson or Reshma Derasari, who have conducted investigations for various organisation.