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Disciplinary investigations- how thorough should they be?

30th January 2013

An essential part of any fair disciplinary process is a reasonable investigation into the disciplinary allegation(s). For some time the case law has indicated that a disciplinary investigation must be "reasonable". This means that employers are expected to carry out such amount of investigation as is appropriate in all the circumstances and the nature of the allegations. In practice this means that it will not always be necessary to interview every witness to an incident/allegation, so long as the employer has gathered some evidence on the incident/allegation. Similarly if an employee accused of misconduct admits that misconduct it may not always be necessary for the formal investigation to involve interviews with other witnesses.

However, the recent case of Stuart v London City Airport, in the Employment Appeals Tribunal (EAT) has given some further guidance on how employers should deal with an investigation where there is an allegation of dishonest conduct on the part of the employee, particularly where that alleged dishonest conduct could amount to a criminal offence, where the employee has specifically asked that the employer extend its investigation into seeking evidence which the employee believed would support his account of events.

Mr Stuart had an exemplary work record, and in his latest appraisal by his employer had been noted as being an excellent employee. He was employed in a position of trust as a Grounds Services Agent. It was common for him to go into the airport shops during his breaks.

The incident that became the subject of the disciplinary investigation involved Mr Stuart entering a duty-free store within the airport to buy some presents, which he held in his hand while in the store. While he was queueing to purchase the presents his attention was drawn to another member of staff of the shop, who was standing outside the shop. Mr Stuart went over to have a conversation with this person. He was then apprehended for dishonestly removing the goods without payment.

In dismissing Mr Stuart the employer relied heavily upon the disputed evidence of a store assistant that had informed her store manager that she saw Mr Stuart  conceal items in his jacket before he left the store. The actual evidence of the store assistant was not tested during the initial disciplinary hearing or the internal appeal hearing. The employer had in fact refused to interview the store cashier and the other store employee that had beckond Mr Stuart to have a conversation with him outside the shop. In addition the employer had failed to view the CCTV footage of the time in question, which would have assisted in determining whether or not Mr Stuart had concealed the items.

The original hearing in the Employment Tribunal concluded that despite the flaws identified, the investigation that the employer had conducted had fallen in the range of reasonable investigations open to it.

However,the EAT ruled that although it would not normally interefere with the decision of the Employment Tribunal on this issue, the nature of the serious allegations of dishonesty required careful investigation, and in view of that the failure of the employer to carry out further enquiries which could have supported the account given by Mr Stuart the investigation that was conducted was unreasonable.

The lesson to be learnt from this case is that employers ought to extend their investigation to interviewing any witness or finding any document that the employee requests where the main allegation again the employee is one of dishonesty. This will not apply to every disciplinary investigation, but clearly an employer should try to ensure that any witness identified by the accused employee as a crucial witness to an event is interviewed if at all possible. Fair and reasonable investigations are always an essential part of a disciplinary process, so employers should not limit their investigation prematurely, or they risk losing any resulting claim of unfair dismissal.

If you need any help or advice on this matter do not hesitate to contact us at Hallett Employment Law Services.




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