When an employee challenges a disciplinary outcome, one question often arises - can the Employment Tribunal consider evidence that wasn’t part of the original investigation? A recent decision from the Employment Appeal Tribunal (EAT) sheds light on this issue.
Background
Will the Employment Tribunal consider evidence outside your disciplinary investigation?
This was the question faced in the case of Kerr and Andrew v the Scottish Ministers [2025] EAT 117, concerning the dismissal of two Scottish Prison Service (SPS) officers.
Both officers were summarily dismissed following a disciplinary investigation into allegations of inappropriate use of force on a prisoner. They subsequently brought claims for unfair dismissal against their employer, the Scottish Ministers, which were dismissed by the Employment Tribunal (ET). The officers appealed to the Employment Appeal Tribunal (EAT).
Facts
The claimants, both employed as prisoner management officers by the SPS, were accused of using inappropriate force during an incident at work. The SPS conducted an internal investigation, followed by disciplinary hearings. The allegations were upheld, and both officers were dismissed for gross misconduct in March 2023.
The officers challenged their dismissals at the ET, arguing that the investigation and disciplinary process were flawed and that their dismissals were unfair. After a full hearing, the ET unanimously dismissed their claims. The claimants appealed to the EAT on two grounds:
- That the ET had asked the wrong legal question, and
- That the ET had made certain findings of fact which led it not to consider whether it was reasonable for the employer to fail to investigate certain matters.
Applicable Law
The legal framework for unfair dismissal in cases of alleged misconduct is well established. The key test is set out in British Home Stores Ltd v Burchell [1980] ICR 303, which requires the employer to show:
- A genuine belief in the employee’s misconduct.
- Reasonable grounds for that belief.
- That the employer carried out as much investigation as was reasonable in all the circumstances.
The EAT also referenced Shrestha v Genesis Housing Association Ltd [2015] EWCA Civ 94, which confirms that the investigation should be considered as a whole when assessing reasonableness, and that the tribunal must not substitute its own view for that of the employer.
Decision
The EAT dismissed the appeal. It held that the ET had not erred in law by limiting its consideration to matters that were actually put before the employer during the internal disciplinary process.
The EAT confirmed that the tribunal’s role is to assess the reasonableness of the employer’s decision in the circumstances known to the employer at the time—not to conduct a wider inquiry into matters not raised during the disciplinary process.
The EAT found that the ET had correctly applied the Burchell test and had not adopted too narrow an approach. The ET had considered whether the investigation was within the “range of reasonable responses” and found that it was.
The EAT also rejected the argument that the ET should have considered additional lines of inquiry not raised during the disciplinary process, noting that the tribunal’s focus must remain on the employer’s decision-making process.
Comment
This case is a useful reminder for HR teams and employers of the importance of a fair and thorough disciplinary process. The decision confirms that:
- Employers are not required to investigate every possible line of inquiry but must carry out as much investigation as is reasonable in the circumstances.
- The fairness of a dismissal will be judged on the information available to the employer at the time of the decision.
- Tribunals will not substitute their own view for that of the employer, provided the employer’s decision falls within the range of reasonable responses.
For HR practitioners, the key takeaway is to ensure that disciplinary investigations are robust, that employees are given the opportunity to present their case, and that decisions are based on the evidence available.
Employers should also ensure clear documentation of the process, as the tribunal will focus on the reasonableness of the investigation and decision-making at the time of dismissal.
Published 13 November 2025
