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Extent of employers' duty to investigate allegations of misconduct

Posted by TonyBrownEmploymentSolicitor on June 21, 2013

The Employment Appeal Tribunal (EAT) has ruled that, when investigating an allegation of criminal behaviour by an employee, employers must take into account evidence that may exonerate the employee as well as evidence that proves the allegation.

In the case in question, the Claimant was dismissed from her employment as a betting shop deputy manager for an alleged theft regarding four bets that the Claimant had processed on the company's computerised system but which did not correspond with CCTV footage of the Claimant in the shop. The Claimant argued that the winnings had been paid to the customers at some other time not shown on the selected CCTV footage.

The tribunal rejected the Claimant’s claim for unfair dismissal, finding that the company's investigation was sufficiently thorough and that the dismissal was fair.

The Claimant appealed to the EAT arguing that the tribunal should have ruled that her dismissal was unfair because of the employer’s failure to take steps that might have exonerated her by failing to examine the whole of the CCTV footage.

Allowing the appeal and setting aside the tribunal’s decision, the EAT held that the only conclusion that the tribunal could have reached in the light of all the evidence was that the employer’s failure to view the whole of the footage meant that the investigation was not as sufficiently thorough as the circumstances warranted. In this case, it would not have taken long for the employer to examine the whole of the CCTV footage and it would have incurred no expense.

The EAT explained that where there are allegations of criminal behaviour, such as theft, an employer must conduct the most careful investigation taking care to look at evidence that might exonerate the employee particularly where the employee's reputation will be seriously affected, and their ability to work in their chosen field or their chosen industry could be irreparably compromised, if they are dismissed because of misconduct which amounts to a criminal offence.

Comment

Employers must carry out a reasonable investigation before concluding that an employee is guilty of misconduct. However, as this decision shows, the extent of the investigation required, at least where the allegation is one of criminal behaviour, does not stop at looking for evidence that implicates the employee and may require an employer to look for evidence that might exonerate the employee.

If you would like advice about how the issues in this note apply to your situation, please contact Tony Brown on 01225 740097 or by e mail to tony@bathemploymentlaw.co.uk

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