We do loads of workplace investigations so I’m always interested to read investigation case law. How much investigating is an employer supposed to do? Employers are expected to do as much investigation as is reasonable in the circumstances. The question whether an employer could reasonably refuse to undertake further investigations which would support the account of an employee accused of gross misconduct was considered by the Court of Appeal in Stuart v London City Airport. As a general rule a reasonable employer will normally investigate all relevant matters unless there is a good reason not to.
In this case Mr Stuart had been employed as a ground service agent at London City Airport. In December 2009, he entered a duty-free store within the airport to buy some items. A member of staff, A, suspected him of having concealed some items under his jacket and reported her concerns to her manager, G. On G’s instructions, A watched Mr Stuart and reported that he walked past two empty tills and was in the lounge area. He was found to have perfume and lipsticks in his possession for which he had not paid.
In his statement he said that whilst queuing, he was re-directed to a till in another area of the shop by a member of staff. Once in the second queue, he said he started chatting to another member of staff and decided to get a drink from the chilled cabinet, He claimed he believed he had never left the shop and the place where he was chatting to the colleague was all part of the same area.
A and G was not asked to give evidence in the disciplinary hearing though they both gave written statements and the disciplining officer, D, talked to G and went to the shop area to determine whether the boundaries of the shop were clearly marked. In D’s view they were clearly marked. Staff in different units had different uniforms and there was different signage. Mr Stuart could not possibly have genuinely believed that he did not leave the shop. As this was the main part of his defence it was reasonable to focus the investigation on that.
The company did not look at the CCTV outside the shop and did not interview the colleague to whom he was chatting. The court noted that the CCTV evidence might have shed light on whether the shop’s boundary markings were clear and whether Mr Stuart did conceal the goods as he left the shop. But once D had reasonably taken an adverse view of Mr Stuart’s credibility on the boundary issue there was no need to go further and view the footage solely in relation to the concealment issue. It also felt the company could not be criticised for not interviewing the colleague who Mr Stuart talked to outside the duty free area since there was no dispute that he was outside the shop at the time, In the circumstances the investigation was fair.
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