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Investigating the charges
[ch 4: pages 20-22]Failure to investigate misconduct and follow a fair procedure can never be justified, no matter how flagrant or obvious the misconduct. The employer must always carry out a fair investigation before disciplinary action is taken.
It is important to speak out about apparent problems with the investigation, for example, failure to interview important witnesses, at the time, rather than leaving it until later. A tribunal can take a failure to speak out at the time into account when deciding whether defects made the dismissal unfair (Stuart v London City Airport [2013] EWCA Civ 973).
The basic purpose of an investigation is to establish the facts.
When investigating alleged misconduct, the employer is not expected to satisfy a criminal standard of proof — guilt beyond reasonable doubt. It is enough to carry out a reasonable investigation and establish a genuine belief on reasonable grounds that the employee carried out the misconduct (British Home Stores Ltd v Burchell [1978] IRLR 379).
Investigation is not a mechanical process. Instead there must be enough testing and probing of the evidence to reach a “reasonable” view as to what to believe (Hendy v Ministry of Justice [2014] EWHC 2535).
It is crucial that the member is careful, accurate, truthful and consistent throughout, and does not exaggerate. Once a member’s credibility is damaged because the employer concludes that they have not told the truth in one part of their story, the employer may then be able to justify disbelieving other aspects of their defence. (See, for example, the Court of Appeal judgment in Stuart v London City Airport [2013] EWCA Civ 973).
An employer does not have to investigate every plausible argument. Instead, the investigation as a whole must be reasonable. For example:
A housing association worker, Mr Shrestha, was dismissed for dishonestly over-reporting his mileage to secure an “essential care user allowance”. An audit showed that every claim was nearly twice the expected mileage, based on AA and RAC route-finder tools, and nearly twice his own mileage for the previous year. During the investigation and disciplinary, Shrestha explained that the mileage was higher because of road closures, one-way systems and residents’ parking.
He later claimed unfair dismissal, arguing that the employer should have investigated his explanations, as well as the original allegations. The employer should, he suggested, have investigated his explanation for each contested journey, for example, by contacting the council to find out whether there were road works on the day in question. The Court of Appeal disagreed. It is not the law, said the judges, that a reasonable investigation requires every argument that is not obviously false or unarguable to be investigated. Instead, the investigation as a whole must be reasonable. In this case, having established a discrepancy of nearly double on every journey, the employer acted fairly by giving Shrestha a chance to explain, considering his explanations and concluding that they did not plausibly explain why every journey had significantly higher mileage.
Rajendra Shrestha v Genesis Housing Association Limited [2015] EWCA Civ 94
When faced with two conflicting accounts of an incident, employers are not obliged to believe one party and disbelieve the other. It is “perfectly proper” for an employer to say that it is unable to resolve the conflict of evidence, in which case the employer should give the alleged wrongdoer the benefit of the doubt (Salford Royal NHS Foundation Trust v Roldan [2010] EWCA Civ 522).
If an employer reasonably believes that one of several employees is guilty of dishonesty (usually theft) but even after a full investigation, still cannot identify the culprit, it can sometimes be reasonable to dismiss everyone who could have been responsible (Monie v Coral Racing Limited [1981] ICR 109). However, a dismissal in these circumstances will be based on damage to trust and confidence, not gross misconduct, and it must be with notice (Hawes v Curtis Limited [2012] UKEAT 0029/12/0106). A tribunal would expect the employer to reach a particularly high standard of investigation, exploring, for example, what might have motivated those accused to carry out the misconduct, and whether any or all of them were acting “out of character”. Given the proliferation of surveillance tools now in use, including retail till codes, CCTV, computer passwords, tracking devices and so on, this situation is less likely to arise than in the past.
The Acas Guidance emphasises the importance of keeping an open mind and looking for evidence that supports the employee’s case as well as evidence against. This means taking statements from all members of staff with a relevant contribution to make, not just those who support the case against the employee. It also means looking at all the relevant electronic or surveillance evidence, not just the footage suggestive of guilt. For example:
A counter-worker at bookmakers William Hill was dismissed for dishonesty. She was accused of not returning to customers the stake they had placed on bets that were “voided” because the race had already started by the time the bet was placed. The dismissal was unfair because managers watched only the sections of CCTV that made it look as if she was guilty — not the whole footage. Had they done so, they would have seen evidence to support her innocence.
Miller v William Hill Organisation Limited [2013] UKEAT 0336/12/2106
The investigation must be within the band of reasonable responses of an employer of equivalent size and resources (Sainsbury’s Supermarket v Hitt [2002] EWCA Civ 1588).
The more serious the potential consequences for the employee, the higher the standard of investigation expected. This is a very important principle.
For example, in Salford Royal NHS Foundation Trust v Roldan [2010] EWCA Civ 522, a Filipino nurse was accused of mistreating a patient, based on the evidence of a colleague. The fact that her dismissal for gross misconduct spelled the end of her nursing career, the loss of her work permit and deportation meant that a particularly high standard was needed.
Similarly, in Crawford v Suffolk Mental Health Partnership [2012] EWCA Civ 138, a tribunal ruled that a nurse was unfairly dismissed following an allegation that she used inappropriate restraint methods on an elderly dementia patient. The dismissal was unfair because the hospital conducted a staged reconstruction of the incident without inviting the claimant and her representative.