Is it reasonable for an employer looking into allegations of misconduct to refuse to undertake further investigations that could support an employee's case? No says Brian Palmer of our Employment Team, particularly where gross misconduct is alleged.
In a recent Employment Appeal Tribunal (EAT) case called
Stuart v London City Airport, Mr Stuart was employed as a
Ground Services Agent at London City Airport (LCA). He entered a
duty-free store within the airport to buy some presents. While
queuing to pay, he was beckoned outside the store boundary to a
seating area by another member of staff and went to speak to
her. At that point he was apprehended by the police for
dishonestly removing goods without payment. Mr Stuart argued
that he had no intention of stealing the items and that he felt
that he was still in the general shop area. Mr Stuart had an
impeccable record and his most recent appraisal graded him as
excellent.
In dismissing Mr Stuart, LCA relied primarily upon their
conclusion that he had in fact left the store boundary with the
unpaid items and upon the strongly disputed evidence of a store
assistant who had informed her store manager that she saw Mr Stuart
conceal items in his jacket before he left the store.
The evidence of the store assistant was never tested orally during
the internal appeal or subsequent Tribunal proceedings. During the
internal proceedings, LCA refused to interview the store cashier or
the staff member who beckoned Mr Stuart outside of the store
boundary. Further, LCA also failed to consider available CCTV
footage of Mr Stuart's movements inside the store. The
CCTV footage would have assisted in determining the allegation of
concealment and, therefore, whether Mr Stuart's conduct was
dishonest.
When deciding whether a dismissal is fair or unfair, an Employment
Tribunal (ET) should not decide whether it considers the employee
is guilty of the misconduct, but rather whether the employer had
reasonable grounds for believing that the employee was guilty. The
ET must review the level of investigation undertaken by the
employer and consider whether it was within, what is commonly
referred to as, a 'band of reasonable responses' – or
in other words one which a reasonable employer would have
undertaken in the circumstances. While the ET in this case
held that the investigation was reasonable and the dismissal fair,
the EAT ruled that the employer's investigation did not go far
enough.
Of particular importance to the EAT in reaching its decision was
the fact that the misconduct at issue related to the claimant's
honesty. Although the employer had conducted an investigation prior
to dismissing the employee, there was other evidence readily
available which was ignored. CCTV footage may well have proved
whether Mr Stuart had been acting dishonestly in the shop. The EAT
ruled that the failure of LCA to carry out investigations, which
could have supported Mr Stuart's account that he was at no time
acting dishonestly, was objectively unreasonable and, therefore,
unsustainable.
What does this mean for employers?
This case is an important reminder to employers that, in cases
where an employee's integrity is in question, a higher level of
investigation may be required to establish the employee's guilt
(or otherwise). This is especially so where the employee raises a
plausible defence to a serious allegation. The employer, as
investigator, must be seen to be even handed and look for evidence
which proves innocence as much as it does to look for evidence
which proves guilt.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
