Labour & European Law Review Weekly Issue 314 11 April 2013
When investigating allegations of serious misconduct, employers must hold a genuine belief in the person’s guilt based on reasonable grounds and follow a reasonable investigation. In Stuart v London City Airport, the Employment Appeal Tribunal (EAT) said that allegations of dishonesty and breach of trust are always serious and therefore require careful investigation by employers.
Mr Stuart had an unblemished work record as a Ground Services Agent at the airport since starting there in October 2005. On the evening of 21 December 2009, he went into a duty free shop to buy some Christmas presents. Having chosen some items which he held in his hand, he went to a till to pay. When told it was going to close, he went to another one.
At that point, a staff member whom he knew called him over to where she was sitting just outside the shop for a chat. After talking to her and realising he was soon due back from his break, he moved to a counter nearby to buy a drink, still holding the goods in his hand. He was then approached by a police officer who accused him of removing the goods from the shop dishonestly.
He was suspended from work and after an investigation was dismissed for dishonesty and a breach of trust, based largely on the evidence of a member of the store staff who told the store manager she saw Mr Stuart conceal items in his jacket; as well as the fact that he had moved outside the shop without having paid for the goods.
Mr Stuart claimed unfair dismissal arguing that he had not realised he’d moved outside the shop boundaries and had always intended to pay for the items. He contested the evidence of the store staff member, who had not given evidence at the hearing and said his employer should have investigated her allegations more thoroughly.
The tribunal found the employer had a genuine belief that Mr Stuart was guilty of misconduct based on reasonable grounds and following a reasonable investigation.
Mr Stuart appealed on the ground that the tribunal’s conclusion as to the reasonableness of the employer’s investigation was perverse. In particular, the allegation that he had concealed items in his jacket went to the heart of the allegation of dishonesty and breach of contract and the employers should have done more to investigate this.
The EAT considered previous case law in A v B in which the EAT said that serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation by employers.
As the accusation that he had concealed goods under his jacket went to the heart of the allegation of dishonesty and breach of trust, it was not enough for the airport to just decide he had left the boundaries of the store. Instead, they should have investigated the issue of concealment further by interviewing the first till operator, the staff member who called him out of the store and by looking at CCTV footage of his movements when inside the shop.
His employer’s failure to carry out these investigations was objectively unreasonable and the tribunal’s conclusion to the contrary was unsustainable.
The EAT unanimously agreed that this was one of those rare cases where they should interfere with the tribunal’s decision and remitted it to a fresh tribunal to be re-heard.
In the current climate, where employers are often quick to dismiss on grounds of misconduct, this case is an important reminder that where employees are subject to serious allegations, such as dishonesty and criminal misbehaviour, the employer’s obligation to carry out a reasonable investigation should include consideration of evidence which supports the employee’s innocence.