“Employers would be well advised to keep a written record of any disciplinary or grievance cases they deal with.” 36. There is also an ACAS Guide on Discipline and Grievances at Work . This suggests that records should include the following: the complaint against the employee; the employee’s defence; findings made and action taken; the reason for actions taken; whether an appeal was lodged; the outcome of the appeal; any grievance raised during the disciplinary procedure; subsequent developments; notes of any formal meetings. 37. This Guidance seems to us to state general practice, to which we would add that an employer is generally expected to keep a written record of what is said by any employee whose evidence is relied on in support of a disciplinary allegation. Usually (as here) it will be in statement form. 38. The Respondent appears to us to have complied with good practice as indicated by the Guide in the recording of the investigation. In particular statements were reduced to writing. We do not think the Respondent was required by general standards of good practice to have kept an investigation log or to have produced an investigation report, though this may be done by an experienced investigator in a large organisation. In our view the Employment Tribunal appears to have applied a very high standard. It does not appear in its Reasons to have considered whether there was a range of acceptable ways in which an investigation could be carried out. That was the task which it was required to perform by section 98(4). 39. (2) The Employment Tribunal’s second criticism of process was that there were no interviews with two workers whose workstations were adjacent to the Claimant. Nor was there an interview with the Claimant himself. So far as the interview with workers is concerned, this appears to us to be a fair criticism. We can see that an Employment Tribunal, applying the correct test, could well find that the Respondent’s investigation fell below a reasonable standard in failing to interview such workers. So far as a failure to interview the Claimant is concerned, the ACAS Code does not mandate such an interview and there is, in our experience, a range of practice. The Employment Tribunal has not, as it should have done under section 98(4), considered whether the procedure adopted in this case fell within the range of such practice. 40. (3) The Employment Tribunal’s third criticism was that the Claimant was not shown Mr Meacock’s statement. The Employment Tribunal seems to proceed on the basis that this must be unreasonable and unfair. It is, however, not necessarily so. The Code says that statements should “normally” provide copies of any written evidence (paragraph 9). The Guide says that in certain circumstances, for example to protect a witness, the employer might withhold some information. So, applying section 98(4), there may be circumstances in which it is reasonable to withhold a particular statement so long as the employee knows the case he has to meet - see Hussain v Elonex . In this case the Respondent gave in evidence a specific explanation for deciding to withhold Mr Meacock’s statement. The Employment Tribunal’s task was to evaluate, pursuant to section 98(4), whether the Respondent’s course of action fell within the range of reasonable responses. There is no recognition of that task in its Reasons. 41. (4) The Employment Tribunal’s fourth criticism was that statements were given to the Claimant anonymously. Again the Employment Tribunal seems to proceed on the basis that anonymise witness statements must be unreasonable and unfair. Again, it is not necessarily so. See Linfood Cash and Carry v Thomson[1989] IRLR 235 and Asda Stores v Thomson . Again, the Respondent gave its explanation for anonymising statements. The Employment Tribunal has not mentioned it or evaluated it against the standard laid down by section 98(4). There is a further point concerning these statements. The Employment Tribunal said that “the Claimant had no means of challenging the content of those statements.”
“… to accept the Claimant’s explanation that in a noisy workshop raising one’s voice is sometimes the only way of being heard.” 44. But this was not the correct approach. The statements taken by the Respondent did not accept that it was appropriate for the Claimant to shout at Mr Meacock. The correct approach for the Employment Tribunal was to find what the Respondent’s conclusion was on this matter and why and then to ask whether the Respondent’s conclusion was reasonable. 45. On the question of alcohol consumption it is difficult to see how the Employment Tribunal reasoned at all. The Respondent had witness statements attesting to the Claimant’s visits to the public house and alcohol consumption, in particular three witnesses who stated expressly that he smelled of alcohol after lunch. One would expect to find in the Employment Tribunal’s Reasons consideration of the question whether it was reasonable for the Respondent to consider these statements honest and reliable and to accept them. This reasoning is not present. The Employment Tribunal appears to rely on its criticisms of the flawed investigation alone. 46. In paragraph 34 of the Employment Tribunal’s Reasons it said that if the Respondent had carried out its procedures diligently it would have discovered “the unreliability of the allegations made against the Claimant”