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Sufficiency of employer's investigation into allegation of dishonesty

Posted by TonyBrownEmploymentSolicitor on September 23, 2013

The Court of Appeal has allowed an employer’s appeal against an EAT ruling that the employer’s failure to carry out further investigations, which the Claimant argued would support his account that he was not acting dishonestly, was unreasonable and made his dismissal unfair.

In the case in question, the Claimant, who worked at an airport, went into one of the airport shops to make some purchases. What happened next was hotly disputed. He was accused by the employer of attempting to leave the shop without paying for the items and which a store cashier saw him conceal in his jacket. His defence was that before he could pay he was beckoned outside the shop boundary to the seating area by a work colleague who wanted to speak to him. It was at that point that he was apprehended for dishonestly removing goods from the shop without payment.

At his disciplinary hearing, the employer refused the Claimant's request to carry out further investigations, including looking at CCTV footage inside the shop. He said that this evidence would have supported his account that he was not acting dishonestly. The Claimant was dismissed for dishonesty.

The employment tribunal ruled that the Claimant's dismissal was fair. The tribunal said that the dismissing managers had formed a reasonable view that the Claimant was not a credible witness based on his responses at the disciplinary hearing and it was reasonable in those circumstances not to go further and to view the CCTV footage. While some employers would have done so the failure to do so was not so unreasonable as to render the process unfair in these circumstances.

The EAT allowed the Claimant’s appeal. It ruled that, in the particular circumstances of this case, where the Claimant had asked for further investigations to be carried out which would support his account that he was not acting dishonestly, his employer's failure to do so was unreasonable and the tribunal's conclusion to the contrary was unsustainable.

The Court of Appeal allowed the employer’s appeal. The ET had directed itself correctly, asked the right questions and come to a considered conclusion about them. Secondly the employer, in circumstances in which it had already concluded that the Claimant was not telling the truth, was entitled to prefer the account given by the witnesses they interviewed without recourse to the further investigations which it is now said that it should have carried out. Thirdly, neither the Claimant nor his representative at any time during the disciplinary proceedings suggested to the employer that it should carry out the investigations whose omission was now said to render the dismissal unfair.

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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