13 February 2013

The importance of investigation before dismissal

The importance of investigation before dismissal

The importance of conducting a thorough investigation during disciplinary proceedings is clear to any employer, because this goes to establishing that they reasonably believed the employee to be guilty of the allegations. But how far does an employer have to go in investigating an allegation to be able to dismiss an employee?

This issue was recently dealt with by the Employment Appeals Tribunal (EAT) in Stuart -v- London City Airport.

Background

Mr Stuart had worked as a ground service agent at London City Airport ("the Airport") since October 2005. He had an unblemished disciplinary record and in his last appraisal his performance had been graded as "excellent".

On 21 December 2009, Mr Stuart went into the duty-free shop to purchase some Christmas presents, he picked the items up in his hands and queued up at an unmanned till. He was later requested to move to another till and while he was in the queue to pay for the items, he was beckoned by a friend and went over for a chat. While chatting, he realised that he was due back from his break and went to a refrigerator nearby to get a drink, still holding the items from the shop in his hands. He was stopped by an officer on suspicion of stealing the items from the shop.

Mr Stuart was suspended on full pay, with effect from 21 December, pending an investigation into the alleged misconduct involving breach of trust. Mr Stuart argued that he did not realise that he had crossed the boundaries of the shop and had always intended to pay for the items. Whereas one witness suggested that he had tried to conceal the items; this witness played no involvement in the disciplinary process.

Mr Stuart was dismissed for gross misconduct. He brought a claim for unfair dismissal and in particular, he complained that the Airport had failed to question the cashier at the till point, where he had initially gone to pay for the items, or the friend he had spoken to. He further alleged that they had failed to consider the relevant CCTV footage which would have shown his movements inside the store and would have supported his account that he had never attempted to conceal any item.

The Employment Tribunal (ET)

The question for the Tribunal was whether the Airport acted reasonably or unreasonably in treating the Mr Stuart's misconduct as a sufficient reason for dismissing him.  Central to that question was whether the Airport had carried out sufficient investigation.

The ET correctly directed themselves that it was not for them to carry out any further investigation, and they should not substitute their own standards as to what was an adequate investigation.

Therefore given that Mr Stuart had an opportunity to give his version of events and a further opportunity to appeal, they held that the dismissal was fair.

The EAT decision

However, on appeal, the EAT acknowledged that while claimants have a high hurdle to persuade them that an ET finding is unreasonable, Mr Stuart's case passed this hurdle. Central to reaching their conclusion, they considered the fact that the allegations against Mr Stuart were of an extremely serious nature. He was an employee whose honesty was being called into question; therefore the Airport should have ensured that they carefully investigated whether or not he had any dishonest intentions.

Conclusion

The moral of the story is to always assess the seriousness of an allegation before disregarding the necessity of pursuing a line of enquiry during a disciplinary process. Best practice is always to investigate everything that turns up during a disciplinary process, even if you think you know the answer before you start.