LEGAL CORNER: Extent of employer’s duty to investigate misconduct

25th Mar 2015

The Court of Appeal has provided further guidance on the extent of the duty on an employer to investigate allegations of misconduct against employees in the case of Shrestha v Genesis Housing Association Ltd [2014] EWCA Civ 94.

Mr Shrestha was employed by Genesis as a floating support worker and was required to travel to see clients at their homes. He was entitled to claim his mileage for such trips, by completing an online form. An audit of a three month period in 2011 showed that the mileage was claimed was consistently higher than that suggested by an AA route finder journey planner; for July 2011, Mr Shrestha had claimed 197 miles whereas the AA figures for the same journeys totalled 99 miles. Mr Shrestha attended an investigation meeting and subsequently a disciplinary hearing. He suggested that the reason for the increased mileage was due to a number of factors including difficulty finding parking, road works causing closure or diversions, and one way road systems.

At the disciplinary hearing, each individual journey was not discussed with Mr Shrestha – instead his manager, Mr East took a few examples and asked about those. He did investigate some of the explanations put forward by Mr Shrestha, but noted that the AA figures did take account of one way road systems. Mr East rejected the view that parking issues could have caused such an increase in mileage since it would be unlikely and unreasonable for Mr Shrestha to park so far away from the client’s home. Although Mr East accepted that road works might account for some of the increased mileage, and accepted that he could not recreate each individual journey again, in the end he felt that it was very unlikely that each and every journey could be affected in this way, which it must have been if Mr Shrestha’s figures were accurate. He felt that the explanations provided to him simply did not stack up, and therefore Mr Shrestha was dismissed for gross misconduct.

Mr Shrestha brought a claim for unfair dismissal against Genesis. In order to demonstrate that a dismissal for gross misconduct is fair, a tribunal must be satisfied that the employer did believe in the employee’s misconduct, and that it had reasonable grounds for doing so based upon a reasonable investigation.

Mr Shrestha argued that Genesis had failed to properly consider and investigate the explanations that he had put forward, in particular the failure to re-create the journeys he had claimed for and had failed to investigate his explanations about road works and increased problems with parking, for example by calling the Highways Authority to ascertain the extent of the road closures on the routes that Mr Shrestha took during the period in question.

The Employment Tribunal, the Employment Appeal Tribunal and the Court of Appeal all accepted that Genesis had conducted a reasonable investigation and that he had been fairly dismissed. They emphasised that what amounted to a reasonable investigation very much depended on the circumstances of the case and the nature of the allegations made. They decided that in this case it was not necessary to examine every possible explanation provided for every single journey. This was especially so where they were all, without exception, significantly higher than the AA mileage figures. It was reasonable to investigate the explanations in general terms, but where they did not assist Mr Shrestha, it was unnecessary to go into the detail that he sought. His claim therefore failed.

This case highlights to employers the importance of ensuring that their investigations into allegations of misconduct are thorough enough to support the conclusions that they reach. It is important that there is a clear and reasoned conclusion as to why a particular decision is reached. Ideally this reasoning should be sent in writing to the employee so that they are aware of the basis of the decision against them. It is this reasoning that will be scrutinised by an employment tribunal should the employee raise a claim in respect of it, and it is helpful to bear this thought in mind at all time during the process to ensure that a fair decision is made.

Safia Tharoo, Barrister, 42 Bedford Row, London

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