Serious Misconduct Must Be Thoroughly Investigated

Where an employee is facing very serious allegations of misconduct, such as criminal conduct, then the employer must carry out a particularly thorough and careful investigation in order to dismiss fairly

An employer who chooses to ignore evidence or witnesses which may disprove serious allegations does so at its peril; ignoring such evidence will almost always fall outside the band of reasonable responses.  To dismiss fairly, the investigation must be fair, thorough and balanced.

In the case of  Stuart v London City Airport [2012] UKEAT 0273_12_0911 the Employment Appeal Tribunal (“EAT”) confirmed that when an employer is investigating allegations of dishonest conduct, a higher threshold is required in terms of the extent of the reasonable investigation. In particular, any potential evidence which might disprove the employee's guilt should be thoroughly explored by the employer before any decision to dismiss is reached.

The case involved allegations of intended theft from a duty free store by S, who had an unblemished disciplinary record. S said that whilst queuing to pay for the goods he was beckoned by a member of staff and went to speak to her on seating just outside the shop boundary. Before he could return and pay, he was accused of shoplifting. S said he had no intention of stealing, had queued twice to pay for the items (which he held in his hand) and hadn't realised the seating was outside the shop area. Statements were taken from S and the store manager but not from the sales assistant, who had told the store manager she had seen S deliberately conceal the items under his coat. This was denied by S and had not been witnessed by the store manager. The investigating manager did not review the CCTV footage to check if S had given an honest account, or interview other staff who had witnessed the incident. Having examined the store boundary, he concluded that S had removed the goods with the intention of not paying for them and dismissed him for dishonest conduct and breach of trust.

S's unfair dismissal claim failed, on the basis that the investigation had been reasonable. The EAT found that the decision was perverse. The allegations went directly to the employee's honesty. As an employee in a position of trust, they were very serious allegations. The key fact was whether S had concealed the items yet this evidence went untested at the disciplinary hearing and the employee's explanation for his behaviour had not been investigated.  The case has been sent to a fresh Tribunal for rehearing.

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