Dismissal is the act of last resort and it is incumbent upon an employer to check all the facts before taking a decision. This includes carrying out further investigations which would tend to support the explanation of an employee accused of gross misconduct.
Unlike the criminal world of Morse and Lewis who have to establish guilt beyond reasonable doubt, all an employer has to do is investigate and establish guilt or otherwise on a balance of probabilities. But it is important that this is done properly.
The Employment Appeal Tribunal has recently considered the extent of an employer’s investigation. Mr Stuart was employed as a Ground Services Agent by London City Airport. It was a position of trust. Mr Stuart went into a duty-free store in the airport to buy some presents which he held in his hands. Whilst queuing, Mr Stuart was re-directed to another operative till by a member of staff. Once in the second queue, he was beckoned outside the store boundary to a seating area by another member of staff for a social conversation, at which point he was apprehended for dishonestly removing goods without payment.
The company relied principally on the point that he had left the store boundary with the unpaid items and upon evidence of a store assistant who informed her store manager that she saw Mr Stuart conceal items in his jacket before he left the store.
Mr Stuart disputed this. In reaching its conclusion, the evidence of the store assistant was not tested orally during the internal appeal. The appeal officer refused to interview the store cashier or the staff member who beckoned Mr Stuart outside of the store boundary. CCTC was in use and available, but the company also failed to consider CCTV footage of Mr Stuart’s movements inside the store which would have assisted in determining the allegation of concealment and therefore dishonest conduct.
Mr Stuart complained that the investigation was insufficient. Serious allegations of dishonesty required careful investigation. As such, the EAT agreed with him that the failure of the company to carry out investigations, which may have supported Mr Stuart’s account that he was at no time acting dishonestly, was unreasonable.
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