A tragic cautionary tale highlighting the need for accuracy and diligence whilst conducting investigations.
Following the premiere of the ITV drama series Mr Bates vs The Post Office on 1 January 2024, the Post Office Horizon Scandal has taken British media and politics by storm. The twenty-year scandal caused a public uproar that has eventually led to an investigation by both the Independent Commission and the Metropolitan Police. More recently, the Government has announced its plan to enact emergency legislation in order to exonerate and compensate the hundreds of convicted victims in arguably one of the largest injustices in British history.
This article will focus on what went wrong in the Post Office Scandal and what human resource professionals (HR) might learn from the Post Office’s failings.
The Post Office Scandal
Background
Between the years of 1999 and 2015, hundreds of sub-postmaster and mistress workers (SPMs) at the state-owned Post Office were convicted or found guilty of fraud, theft and false accounting. Some were fired and/or imprisoned, while others had to pay thousands of pounds putting them in dire strait financially. What followed was a long running dispute between the SPMs and the Post Office, in which the SPMs alleged that the money discrepancies discovered by the Post Office were caused by a faulty computer system called Horizon. While SPMs’ employment contracts were terminated and some individuals were criminally convicted, the Post Office maintained that the computer system was reliable.
In 2019, in the case of Bates and others v Post Office Ltd [2019] EWHC 3408 (QB) (Judgment (No. 6) "Horizon Issues", Fraser J gave judgment regarding the functionality and operation of the Post Office's computer system Horizon. When rendering his decision, Fraser J found, among other things, that it was possible that the bugs, errors and defects alleged by the claimants, could have caused the alleged discrepancies or deficiencies in the SPMs’ branch transactions or accounts. Fraser J found that the computer system was “not remotely robust” and that there was a “material risk” that the system in use from 2000 and 2010 and from 2010 to 2017 would result in shortages in branch accounts.
In September 2020, the government established the ‘Post Office Horizon IT Inquiry’ chaired by Sir Wyn Williams, to examine the execution and shortcomings of the Horizon system. This converted to a statutory inquiry in June 2021. Since then, the Courts have begun quashing convictions for SPMs, however, some SPM’s are still seeking exoneration and compensation for the injustice they have suffered.
What went wrong?
The Scandal stemmed from a number of failings made over an extended period of time as well as the use of reputational power by the Post Office. Nonetheless, a significant contributing factor of the wrongful convictions was the inadequate investigation and insufficient disclosure of facts during the SPMs’ prosecution procedure. Specifically, it was assumed that the records generated by the Horizon system were accurate and true.
In Hamilton & Others v Post Office Limited [2021] EWCA Crim 577, the Court of Appeal determined that the trial process could not be fair in any case where the prosecution relied heavily on the reliability of Horizon data and where there was no independent evidence of actual loss. It went onto say “the failures of investigation and disclosure were in our judgment so egregious as to make the prosecution of any of the ‘Horizon cases’ an affront to the conscience of the court”.
HR Workplace Investigations
HR can learn from the Post Office’s mistakes, which included accepting the computer records at face value and failing to carry out a comprehensive inquiry before coming to a conclusion on the SPM’s conduct. This is especially important for large retail businesses with many employees as they may have their own computer systems which render anomalies.
The primary takeaways from the Post Office Scandal that HR might like to keep at the forefront of their minds , along with some suggestions for applying them to HR workplace investigations.
1. Effects of inaccurate information and the burden of proof
Given that the SPMs were Post Office workers, the Post Office Scandal included elements of employment law. However, it is a unique case in its own right. This is because, for more than 300 hundreds years, the Post Office has had prosecution powers which enable it to conduct its own criminal investigations relating to offences committed against the post. Accordingly, as this was a criminal investigation, the Post Office was required to prove the SPM’s guilt of the offences ‘beyond reasonable doubt’. This is a very high standard of proof and the court has to be convinced there is ‘no doubt’ that something is true.
Contrast this to a HR investigation into alleged employee misconduct. The burden of proof at a disciplinary hearing is on the ‘balance of probabilities’, which means that the allegation need only be more likely than not in order for it to be true. Arguably, that makes disciplining an employee easier because the threshold is lower. However, it should be noted that whilst it might be ‘easier’ to discipline an employee, HR need to take great care to ensure that the facts of the investigation are accurate. The Post Office Scandal has shown the devasting consequences that can happen to people as a result of factual inaccuracies and whilst HR do not have criminal prosecution powers, they still have the ability to take away someone’s livelihood by terminating their contract of employment.
2. Impartiality
As mentioned above, the Post Office conducted both the investigations and the prosecutions regarding the SPM’s fate. Effectively, it acted as both judge and jury. If asked to conduct a workplace investigation, HR should ensure that all parties involved in the process remain independent and impartial. It can do this by ensuring that separate individuals handle different stages of the process. For instance, in the event of a disciplinary case, the investigating officer and disciplinary hearing officer should be different people and they should refrain from discussing the case with one another while it is underway. The investigating officer and the disciplinary officer should also look at a case on its merits, and rather than trying to find evidence to prove guilt, the disciplinary officer should decide whether they believe the allegations to be more likely true than not.
3. Overreliance of records
Furthermore, it is quite simple to place overreliance on records when making decisions during a workplace investigation. However, it is evident from the Post Office Scandal that the records from computer systems are not always correct. Notwithstanding a company’s obligation to carry out a ‘reasonable’ investigation, HR should have a good understanding of the records being relied upon and whether inaccuracies are possible, particularly if challenged or if a new system has been put in place.
There were many other factors that makes the Post Office Scandal unique from a HR situation. Nonetheless, it is essential for HR professionals to use a high standard of diligence and accuracy when conducting workplace investigations, as the repercussions can be equally detrimental.
If you require advice on a workplace investigation or have any other employment law questions, please contact a member of team.