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The world’s most expensive duty free?

How far must an employer go when investigating an allegation of misconduct? The case of Stuart v London City Airport Ltd gives employers some useful guidance on what constitutes a reasonable level of investigation in cases of misconduct.

By way of background, for an employer to win a Tribunal claim of unfair dismissal, it must demonstrate that (1) it believes the employee to be guilty of misconduct; and (2) it has reasonable grounds for believing this, having carried out "as much investigation into the matter as was reasonable in all the circumstances of the case".

Mr Stuart was a ground services agent at London City Airport ("LCA") and he was stopped outside the duty free shop with unpaid items in his possession. Unsurprisingly he was suspended pending a disciplinary procedure. Mr Stuart’s defence was that he was not guilty of theft, as he had never left the boundaries of the duty-free shop. As part of the investigation, LCA inspected the areas in question and concluded that it was impossible for Mr Stuart to hold this view. Accordingly, he was dismissed for gross misconduct.

Mr Stuart claimed unfair dismissal, and principally alleged that LCA had carried out an insufficient investigation. He argued that LCA had failed to interview all the duty-free staff who had been present and failed to obtain the available CCTV footage, which, he claimed would have shown that he had initially tried to pay for the goods, and had only left the duty-free shop to talk to a colleague. Ultimately, Mr Stuart lost his claim at the Tribunal, but that was not the end of the matter.

Mr Stuart appealed to the Employment Appeal Tribunal ("EAT") who was minded to accept Mr Stuart’s above argument, so remitted the case to a fresh Tribunal to reconsider the original decision. At this point LCA appealed to the Court of Appeal who decided, conclusively (for now at least) in favour of LCA i.e. that the dismissal had been fair.

The Court of Appeal’s decision is helpful to employers as it contained a number of investigation related learning points, which included:

Always bear in mind that the purpose of an investigation is to establish the facts on a balance of probabilities and not beyond all reasonable doubt.

Ensure you comply with the ACAS Code and any relevant internal policies and procedures governing investigations (or at least have a good and documented reason for not doing so!).

Ensure the investigating manager is (so far as practicable) independent and not connected to the disciplinary allegations.

Consider all the evidence that may be required (e.g. witnesses, documents/CCTV footage, etc.).

Do not jump to conclusions - even in cases of "obvious" misconduct, employers should investigate the misconduct in question to establish what has actually taken place.

If the employee admits misconduct then no further investigation will generally be required, but it is still critical to carry out a fair process and consider issues of mitigation to see if further enquiries are necessary.

Take statements from relevant witnesses.

Employers do not have to speak to every possible person and explore every avenue in an employee’s defence. This case demonstrates, employers have a measure of discretion when it comes to handling investigations and the mere fact they do not interview every single potential witness or consider every possible document will not necessarily be fatal to the fairness of the investigation.

If the allegations are very serious and may result in the employee being unable to work again in his/her chosen profession, this is likely to require a more comprehensive investigation.

 

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.

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