Investigating Gross Misconduct…. How far do you have to go?

In a recent court of appeal case, it was discussed how far an employer is reasonably expected to go when undertaking an investigation into allegations of gross misconduct.

The case in question relates to an airport worker who was seen leaving a shop in the airport with an item for which they had not paid. Once the incident had been reported to the relevant members of management, statements were taken from the witnesses and the employee in question. In their statement, the employee admitted that they had attempted to purchase some perfume and lipstick.  However the tills they had approached were closed. They then moved to the wine and spirits department where the tills were free. Whilst waiting in the queue they decided to grab a drink from the chiller cabinet in WHSmiths which they believed to be part of the same area.

An investigatory hearing was undertaken whereby the employee was questioned as to the content of their statement. The employer felt it key to establish the boundaries of each of the shop areas and adjourned the meeting to inspect the area personally. They found that there was a clear differentiation in the floors mosaic tile which indicated the end of one shop and the beginning of another, and staff wore different uniforms in different shops as well. It was therefore clear to the employee that they had entered a different store and thus intended to leave the store without paying for the items. The employee was therefore dismissed for gross misconduct.

The Employee appealed the decision, where the same inspection of the shop floor was undertaken by another member of management. They noted that as well as the different floor and uniforms, there was a considerable distance crossing a central seating area which the employee crossed with the items concealed under their jacket. The appeal was therefore rejected. The employee therefore took the matter to an employment tribunal.

The Tribunal, having reviewed the evidence were happy that the employer held a reasonable belief that the employee was guilty of the allegations raised and a fair disciplinary process had been undertaken. Further they ruled that reasonable investigation had been undertaken and that relying on the written evidence of witnesses only was sufficient. Further the Employee tried to claim that a full investigation had not been undertaken as none of the shop staff had been interviewed and nor had any CCTC footage been taken into account. The Tribunal felt this was not necessary as they have undertaken visual inspections of the boundaries themselves. As such the Tribunal upheld the employers decision to dismiss the employee. This was appealed to the EAT.

The EAT accepted the employee's criticism of the investigatory process and disagreed with the Tribunals finding that further investigation may not have been of use to the employer. As such the Tribunals original decision was seen as perverse and a rehearing was ordered in the Court of Appeal.

At the Court of Appeal they looked to determine if the employer had taken reasonable steps to establish a reasonable belief that the employee was guilty. They made it clear that the hearing was not to determine the principles behind the matter. They rejected the EAT’s suggestion that further investigation was necessary as this was not the main focus of the disciplinary itself, the fact remained that the employee had not paid for the items and as such a finding of dishonesty could be sought.

The key here is to make sure that you as an Employer undertake a thorough investigation addressing as much detail as necessary to come to a reasonable belief of the employee's guilt. The level of investigation may vary from case to case, dependent on the severity of the allegations.

Published: 30 Sep 2013

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