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

legal updates

The level of investigation may vary from case to case, dependent on the severity of the allegations.

Read our disclaimer keyboard_arrow_down

This website content is intended as a general guide to law as it applies to the motor trade. Lawgistics has taken every effort to ensure that the contents are as accurate and up to date as at the date of first publication.

The laws and opinions expressed within this website may be varied as the law develops. As such we cannot accept liability for or the consequence of, any change of law, or official guidelines since publication or any misuse of the information provided.

The opinions in this website are based upon the experience of the authors and it must be recognised that only the courts and recognised tribunals can interpret the law with authority.

Examples given within the website are based on the experience of the authors and centre upon issues that commonly give rise to disputes. Each situation in practice will be different and may comprise several points commented upon.

If you have any doubt about the correct legal position you should seek further legal advice from Lawgistics or a suitably qualified solicitor. We cannot accept liability for your failure to take professional advice where it should reasonably be sought by a prudent person.

All characters are fictitious and should not be taken as referring to any person living or dead.

Use of this website shall be considered acceptance of the terms of the disclaimer presented above.

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.

Cable For My CarWe offer free next day delivery* on all EV charging cables when shipped within mainland UK

Stocking only premium EV charging cables, we ensure you experience a stress-free EV charge, over and over, confidently backed by our 2 year warranty. Our premium & reliable charging cables are compliant with EU & UK safety standards. We offer free next day delivery* on all EV charging cables when shipped within mainland UK.

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

Related Legal Updates

Employment Law: Carer’s Leave

The regulations explicitly safeguard employees from any detriment or dismissal resulting from taking or seeking to take carer’s leave.

Employment Law: Annual Leave Changes

Several significant changes came into force on 1 January 2024 that affect the statutory annual leave and pay entitlements.

The office Christmas party season is here

Where an employee makes comments concerning a person’s body parts or style of dress that are intended to be good-natured but are perceived as offensive…

Update on Rights to Flexible Working Requests

Employers will remain entitled to turn down a request pointing to reasonable grounds as a basis for refusal.

Three new employment laws for 2024

The Carers Leave Act, The Neonatal Care (Leave and Pay) Act and The Protection from Redundancy (Pregnancy and Family Leave) Act.

Parents and Carers: New Protections at Work

Parents and carers will benefit from the following new employment protections that received royal assent in May 2023.

April 2023 Pay Rate Increases

The new financial year is upon us, with new rates abound.

Get in touch

Complete the form to get in touch or via our details below:

01480 455500

Vinpenta House
High Causeway

By submitting this quote you agree to our Terms & Conditions and Privacy & Cookies Policy.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.