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Newsflash – Reasonable investigation: be sure of dishonesty

investigationSummary: If an employee is alleged to have acted dishonestly does this mean that there is a higher threshold in terms of the investigation needed to be carried out by an employer prior to a fair dismissal? Yes, said the EAT in Stuart v London City Airport, which you can access here.

Facts: Mr Stuart was employed as a Ground Services Agent at London City Airport (LCA). He had an impeccable record and, in his most recent appraisal, had been graded “excellent”. However, in December 2009 he was dismissed for attempting to steal goods from Nuance, LCA’s duty-free shop.

Mr Stuart picked up a number of items in the duty-free shop. While in the queue to pay, he was beckoned over to a seating area outside the shop by a colleague and went to speak to her, still holding the items. Mr Stuart was then apprehended for taking the goods without payment. A store assistant told the store manager the employee concealed the goods under his jacket before he left the store. This was strongly disputed by Mr Stuart.

However, the colleague Mr Stuart spoke with was not interviewed as part of the investigation and neither that colleague nor the store assistant gave evidence at the disciplinary hearing. Therefore, Mr Stuart was not given the opportunity of disputing the store assistant’s allegation, or the opportunity of support from the colleague. The evidence at the hearing was just an oral statement from the store manager that he had been told the items had been concealed by Mr Stuart. Also the employer did not consult the available CCTV footage which would have helped decide whether he had hidden the items and was therefore acting dishonestly.

Mr Stuart brought an unfair dismissal claim. The Tribunal held that the investigation carried out was reasonable, and that it was fair for LCA to dismiss Mr Stuart.

Mr Stuart appealed to the EAT. The EAT recognised that the question of Mr Stuart’s honesty was at the heart of this case and that, as an employee in a position of trust, this was a very serious allegation. The crucial element in dispute was the concealment of items under Mr Stuart’s jacket, as this was central to the allegation of dishonesty. The reliance on an oral statement from the store manager as to the misconduct was insufficient for a fair dismissal, given that he had not seen the concealment himself but just relied on a shop assistant’s evidence. Although the employer had conducted an investigation prior to dismissing the employee, there was other evidence readily available which was ignored; CCTV footage may well have proved whether Mr Stuart had been acting dishonestly in the shop. The fact that this was not considered was found by the EAT to be outside the range of reasonable responses.

Comment: The misconduct at issue in this case related to the employee’s honesty as an employee in a position of trust. Employers should note that in cases where an employee’s integrity is in question, a higher level of investigation may be required to establish their guilt (or otherwise) for a fair dismissal to be proved. This is especially so where the employee has a plausible defence to a serious allegation.

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