A common question that we’re asked by clients in suspected misconduct cases is whether the employer has to investigate every line of defence put forward by an employee.
Clients are concerned with, amongst other matters, the time involved in carrying out investigations; the number of people that become involved and when an employee seems to be adding additional points for investigation which can be a frustrating and deliberate attempt by the employee to hijack the process.
Employers can take some comfort, however, from a recent Court of Appeal decision that has found employers do not have to investigate every line of defence.
In Shrestha v Genesis Housing, Mr Shrestha was employed as a floating support worker required to travel by car to see clients at their homes. An audit of his expenses claims for a three month period in 2011 revealed excessive mileage when compared to the AA figures for the same journeys. Mr Shrestha said that the high mileage he claimed was due to a number of factors, namely difficultly in parking and one way road systems and road works that caused closures or diversions.
The employer did not put each specific journey to Mr Shrestha and did not analyse the purported reasons for the additional mileage. This was because every single journey that he had made was above the AA suggested mileage. The employer, therefore, concluded that it was simply not plausible that there was a legitimate explanation for each and every journey and concluded that gross misconduct had occurred. Mr Shrestha was subsequently dismissed.
The Employment Tribunal dismissed a claim for unfair dismissal and the decision was upheld by both the EAT and the Court of Appeal. According to the Court of Appeal, the tribunal was required to apply the test in British Home Stores Limited v Burchell, a longstanding case that sets out the principles employers should follow in conduct cases. The test includes that an employer must carry out as much investigation into the matter as is reasonable in the circumstances. But an employer must remember also that the band of reasonable responses test applies to an investigation into suspected conduct as well as to the reasonableness of the decision to dismiss.
The Court of Appeal considered that the employer's investigation was reasonable and should not be interfered with. According to the Court of Appeal, to say that each line of defence put forward by Mr Shrestha must be investigated, unless it is manifestly false or unarguable, is to adopt too narrow an approach and would add an unwarranted gloss to the Burchell test. The investigation should be looked at as a whole when assessing the question of reasonableness.
So what does it mean for you? It means that as an employer you only have to carry out a reasonable investigation; it does not mean that you have to do everything possible to investigate every possible explanation put forward by an employee.
However, always remember that where the allegations of misconduct against individuals are very serious, are akin to criminal misconduct and/or could have potentially career-wrecking implications, Employment Tribunals are much more likely to consider a dismissal to be unfair if lines of investigation that could exonerate the employee were known to the employer and were not pursued. It is a question of fact and degree. The more serious the charge, the more careful your investigation needs to be.