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Employment Law Update – Poor Workplace Investigation Leads to Award £40k to Employee Who Stole From Company

Mr Burns was employed as an operations manager by Nottingham Rehab Supplies Ltd Allegations were made that he had received between £400 and £500 for the sale of company property to gypsies.

Mr Burns denied the allegations and the Head of HR, Ms Cook, made further enquiries. One of the staff, Mr Pickering, stated that Mr Burns had sold the racking for £450, and from the proceeds had given £20 to each member of staff at a Christmas party.

During the investigation Ms Cook interviewed Mr Rley, a local gypsy who said that he had bought 12 or 13 pallets of racking for £800 in cash from “boss man Steve”, and that Mr Burns had given him a key for the back gate to the site, which allowed him access to take the racking. Ms Cook’s investigation report stated that it was known by other staff that Mr Burns had sold racking to a gypsy.

Mr Burns was invited to a disciplinary hearing. He was given the investigation report, which included summaries of the individual allegations, but he was not given Mr Pickering’s email, or any witness statements, except that given by Mr Rley. At the disciplinary hearing, Mr Burns stated that there would not have been 13 pallets of racking on the premises at the relevant time, and that there was only one key to open all doors. If he had given this key away, the security of the whole premises would have been compromised.

He said that the allegations of money from gypsies being given to employees at the Christmas party had been a joke that “had gone bad”. After the hearing, the disciplining officer, Mr Kennedy, made further enquiries, but did not provide details of this investigation to Mr Burns. The disciplinary hearing was reconvened two weeks later. The day before the reconvened hearing, Mr Burns telephoned Mr Kennedy, and asked him whether or not he would be dismissed.

Mr Kennedy said that he would, because “the weight of the evidence about the racking was too great”. At the reconvened hearing, Mr Kennedy found that Mr Burns had committed acts of gross misconduct, namely selling racking to Mr Rley for financial gain, and giving Mr Rley a key to the premises. Mr Burns appealed unsuccessfully, and he complained that he had been unfairly dismissed.

The tribunal found that Mr Kennedy genuinely believed that Mr Burns had committed the acts of misconduct alleged, but that his belief was not reasonable. Mr Burns was not provided with the primary evidence on which the allegations were based. The tribunal said that it is sometimes necessary for employers to anonymise the names of employees from witness statements obtained during disciplinary investigations.

However, in this particular case, the “rolling together” of what people said, without setting out clearly each member of staff’s evidence was not a fair basis on which to present the evidence to Mr Burns. Mr Burns was unable to understand the allegations in context, and therefore unable to identify errors or inconsistencies of allegations. Additionally, the employer had not followed up inconsistencies in the evidence provided by Mr Burns, the disciplining officer should not have disclosed the outcome to Mr Burns before the disciplinary proceedings had conclude, and finally, the company had not followed its own written procedures regarding investigations and witness statements.

In consequence the tribunal found that Mr Burns had been unfairly dismissed, and was awarded compensation of £40,400. Burns v Nottingham Rehab Supplies Ltd. If you need help with tackling workplace investigations, give us a call.

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