A lorry driver who’d just arrived at an Asda depot was spotted weeing over pallets used for the delivery of food. The wheels of disciplinary action led to what looked like a straightforward dismissal for gross misconduct and breach of health and safety rules.

Unfortunately for Asda, it turned out to be another instance of a cursory investigation. We like things simple, and often that means not making the effort to understand the full picture and specific legal context.

The Employment Tribunal, in this case, learnt that the lorry driver had type 2 diabetes, one of the symptoms being urge incontinence. He’d feared he wasn’t going to make it to the toilet and didn’t see there was any other choice. But Asda hadn’t asked for any medical evidence in their investigation and wasn’t even clear on which health and safety regulations had been breached. When the driver raised the issue of his condition, the evidence was considered to be irrelevant. As a result, Asda has recently lost the case due to the lack of a reasonable investigation – amounting to disability discrimination under the 2010 Equality Act.

Whenever a situation requires an investigation, it’s critical the employer can prove they’ve taken a professional approach:

– A system in place that conforms with legislation and best practice, and the capability – either through trained staff internally or external support – to carry out watertight investigations, that aren’t going to lead to further challenges and disputes;

– Don’t use inexperienced managers who already feel they know and understand the people involved. They will often judge people and not the evidence. Managers think they know how to spot a “wrong ‘un”. They may not have a full awareness of the skills necessary for an investigation and the time commitment required;

– Watch out for conclusive early evidence. There’s a common problem with investigators who become convinced by the evidence first interview they carry out – they stop looking for more information, they know the truth already and unconsciously begin to filter information which backs up their ideas;

– in-house investigators also tend to make judgements that upset the least number of people in the organisation (in the example given here, that meant agreeing with the headteacher). Investigators have to tell it like it is, in order to be fair and to ensure there’s a genuine outcome. If someone has raised a complaint maliciously, for example, then this needs to be made clear, not glossed over.