Gross Misconduct – investigation is the key

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The employee in question had a previously 'unblemished' employment record and was noted to be an excellent employee.

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A recent Employment Appeal Tribunal case, has re-highlighted to employers the importance of thoroughly investigating all disciplinary issues before definitive action is taken.

In the case of Stuart V London City Airport, the Appeal Tribunal was tasked with deciding what level of investigation is appropriate when an employee is suspected of gross misconduct. The employee in question had a previously ‘unblemished’ employment record and was noted to be an excellent employee.

However in 2009, the employee had entered into the airports duty free shop, he held a number of items in his hands, not in a basket and stood queuing at an unmanned till point. The employee was told to go to another till point as that one was not in service, which he actioned with the items still in his hands.

The employee was then, whilst queuing called over to a seated area where another member of staff wished to converse with him. He undertook this conversation with the items still in his hands. The employee then realised his break was nearly over and moved back towards the staff room, via a refreshment stall, he was at this point stopped by a police officer on suspicion of removing goods from the shop dishonestly.

The employee was suspended on full pay immediately. The employer then undertook an investigatory process which consisted of the taking of statements from two members of staff. The store manager and a store assistant who had noted the employee leaving the store with the goods in question, further assertions were made that the items were in fact concealed under a jacket and not openly visible as the employee claimed. Based on these statements a disciplinary hearing was scheduled.

At the hearing the employee highly refutes the allegations that had been made against him, and asserted that he fully intended to pay for the items when he purchased his refreshment. He felt that he had not left the general shop area and as such he was not guilty of any theft. He produced evidence to prove that he always paid for items he purchased at the store.

The employer subsequently adjourned the meeting in order to further examine the shop area in question. Having inspected the layout, it was clear that there was a boundary between the two areas in question and as such it was clear the Employee had in fact left the store without paying for the goods in his possession. The employee was therefore summarily dismissed for gross misconduct.

The employee appealed on the basis that the boundaries were not clearly defined and that he was not aware such boundaries existed. Further he always intended to pay for items and as such was not guilty of theft. In the appeal hearing, the employer again adjourned the meeting to inspect the layout of the shopping area, it was concluded here that the floor clearly defined a boundary between once shop and another, by the difference in floor tiles and further each section had different staff who were dressed differently and signs made it clear when one store ended and the other began. Further the employee was apprehended in a restaurant area, which was clearly segregated from the shopping area. As such the appeal was dismissed.

The Tribunal therefore had to look at whether this level of investigation was sufficient given the size and resources available to the employer at the time. They noted that no criminal proceedings had been successful against the employee, however based on the evidence heard, the employer held a genuine belief that the employee had committed gross misconduct, however the evidence collected was inconclusive and conflicting and certain members of staff, who could have inferred the Claimants innocence were not questioned.

The Tribunal stressed that in investigating a matter of this magnitude evidence should be collated from all available resources despite the fact that it may demonstrate some evidence in favour of the employee. The employer had also focused more on the issue of layout, rather than investigating the singular allegation that the employee was concealing the goods. The person who made this statement had never been brought to task and no other evidence verified this fact, however the employer ignored this and used this as grounds to find the employee deceitful. As such the employee’s appeal was allowed on the basis that the investigation was not through, or consistent with the allegations raised.

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What can I do?

Review your organisations priorities and ask ‘can we afford a breach?’. What do I do during an incident? Who do I involve? When do I involve the ICO?

If you’re unable to answers these questions, you need help from the experts.

The lesson here is to make sure all avenues are persuaded before a decision is made in situations such as these.

Dennis ChapmanIn remembrance of Dennis Chapman 1951 -2015Read More by this author

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