March 13, 2013

Employment e-Brief – EAT reiterates the importance of a thorough investigation

A recent decision of the Employment Appeal Tribunal (EAT) is a timely reminder to employers of the importance of a thorough and fair investigation when an employee is accused of dishonesty.

THE CASE

The Claimant in this case (Stuart v London City Airport) was dismissed by his employer on the grounds that he had committed an act of gross misconduct.  The specific allegation was that he concealed goods under his jacket whilst visiting a duty free shop in the airport, and then proceeded to leave the shop without paying for the goods.

THE CLAIMANTS ACCOUNT

The Claimant’s account was that he had visited the shop to purchase goods.  He had not used a basket, but had instead been holding the goods in his hand.  He had attempted to pay for the goods at a till before being told by a member of staff that that till was closed.  He was directed to another till and joined the queue.  Whilst queuing he was beckoned over to a seating area immediately outside the shop by another member of the duty free staff (Lynette).  Whilst having a conversation with Lynette about the snowy conditions being experienced that day, the Claimant was approached by a policeman who told him he was suspected of dishonestly removing goods from the shop without paying for them.

THE INVESTIGATION

The Claimant was suspended to allow an investigation to take place.  During this investigation statements were taken from the shop manager (Mr Gilani) and another member of staff (Ms Adenekan).  In his statement Mr Gilani explained that Ms Adenekan had reported to him that she suspected the Claimant was concealing goods under his jacket.  He had then gone to observe this on the shop floor for ten minutes.  During this time he did not see the Claimant conceal any goods under his jacket.  He therefore asked Ms Adenekan to keep an eye on the Claimant.  Ms Adenekan then reported to Mr Gilani when the Claimant left the shop, and told Mr Gilani that she was certain he had taken goods from the shop.  Mr Gilani then notified airport security.

DISCIPLINARY HEARING & APPEAL

The Claimant attended a disciplinary hearing held by Mr Dodds.  Mr Dodds read the statements prior to the hearing, and also a statement from the Claimant.  The Claimant denied that he had concealed goods under his jacket, and explained that he did not realise that he had left the general shop area.  Mr Dodds adjourned the meeting and went to view the shop layout.  He was satisfied that the boundaries were clear, and decided to summarily dismiss the Claimant on the basis that he had dishonestly left the boundaries of the shop without paying for the goods.

The Claimant appealed against his dismissal, reiterating his assertions that the shop boundaries were not clear, that he had always held the goods in his hands (and had not concealed them) and that he had always intended to pay for the goods.  The appeal officer viewed the shop layout and agreed with the disciplinary officer.  He upheld the decision to dismiss the Claimant.

CLAIM FOR UNFAIR DISMISSAL

The Claimant submitted a claim of unfair dismissal.  This was heard by an Employment Tribunal which concluded that the dismissal had been fair.  The Claimant appealed to the EAT.

The EAT heard his appeal and concluded that the Tribunal had been wrong to hold that the investigation had been fair and reasonable.  Importantly, the EAT held, there had been a serious allegation of criminal misbehaviour made against an individual holding a position of trust who had an unblemished record.  The Claimant’s evidence contradicted that of Ms Adenekan, and Ms Adenekan had not been interviewed during the disciplinary process after she had given her initial statement.  This, according to the EAT, was insufficient.  In these circumstances the employer should have interviewed the other witnesses to the incident, for example the till operators and Lynette.

The employer’s investigation was also insufficient as the CCTV footage was not considered during the investigation, disciplinary or appeal hearings.  This footage was available though, and could have determined whether or not the Claimant had in fact concealed goods (which went to the heart of the allegation of dishonesty).

On this basis the EAT overturned the Tribunal’s decision, and remitted the matter to a fresh Tribunal for a re-hearing.

SUMMARY

This case demonstrates the importance of a reasonable investigation.  This is especially so in cases where an individual’s integrity is in question.  In such circumstances a higher level of investigation may well be required to establish whether or not the allegation is true.

To discuss this e-Brief in more detail please contact Philip Paget employment partner on 0113 227 0212 or at philip.paget@gordonsllp.com