How detailed does a disciplinary investigation need to be?

28th February 2015 A reasonable investigation is an essential part of any fair disciplinary process. One question faced by employers in dealing with a disciplinary investigation is just how much detail the investigation must go in to. A recent decision of the Court of Appeal helps to answer this question.

The case of Shrestha v Genesis Housing Association Ltd concerned a floating support worker for the Association. He was required to travel frequently to see clients at their homes. He was entitled to payment for his work mileage in expenses. In August 2011 the employer carried out an audit of Mr Shrestha's work mileage covering a period of three months. The audit showed that the mileage claimed was significantly higher than the AA's recommended mileage for the same journeys. For example, his claim for July 2011 was 197 miles, whereas the AA's recommended mileage for the same journeys was 99 miles. Mr Shrestha was required to attend a disciplinary hearing. In explaining the significant discrepancy between the mileage claimed and the recommended mileage Mr Shestha claimed that there had been a number of complications such as one-way road systems, and road works causing diversions. The manager conducting the disciplinary hearing adjourned the hearing in order to consider the explanation given by Mr Shrestha. The manager then carried out an analysis of two journeys which had been taken in November and December 2010 and then again in June and July 2011.The manager noted that in both instances the mileage claimed in 2011 was higher than it had been recorded in 2010, and still in excess of the mileage recommended by the AA. As a consequence the manager concluded that Mr Shrestha's explanation's were implausible and not legitimate. As a result Mr Shrestha was dismissed for gross misconduct.

The Employment Tribunal rejected the claim of unfair dismissal that Mr Shrestha brought. The Employment Tribunal concluded that the investigation conducted by the employer had been a reasonable investigation, and that to dismiss Mr Shestha was reasonable. In the Employment Appeal Tribunal (the EAT), Mr Shrestha contended that the Employment Tribunal had been wrong to only consider the reasonableness of the employer's investigation into the original allegations, overlooking the question of whether the investigation into his response to those allegations was reasonable. He argued that as he had put forward a number of lines of explanation (parking problems, one-way systems, road closures) that it was essential for the employer to investigate each explanation (ie not just simply compare the mileage of a couple of journeys, but also investigate the explanations given too). The Court of Appeal upheld the decision of the Employment Tribunal. It concluded that the law was clear that an employer is simply required to carry out as much investigation as is reasonable in the circumstances. The investigation should be looked at as a whole. As a part of the investigation the employer must consider any defences put forward by the individual, but the extent to which it is necessary to carry out specific investigation into each explanation for each incident or line of defence depends on the circumstances. The Court of Appeal concluded that to claim that to say that every line of defence has to be investigated is incorrect. In this case the the assessment of the employer had been that the explanations given were not plausible in accounting for fact that there was a significantly higher mileage claimed for each journey.

The lesson for employers is to ensure that they consider each of the allegations and the explanations given by the relevant employee, but they will not be required to investigate and look into each and every incident if there are a large number of incidents involved. The investigation as a whole has to be reasonable, not necessarily exhaustive. For individuals the case illustrates the need to ensure that explanations are given wherever possible and that it is important to appreciate that there is a need to provide focus.

If you need any further assistance on matters raised in this article please do not hesitate to contact Hallett Employment Law Services Ltd.