Dishonesty Dismissals: More Thorough Investigation Required


3 mins

Posted on 31 Jan 2013

The EAT has held that a more thorough investigation is required in cases of dismissal for alleged dishonesty and any potentially exculpatory evidence must be explored

In Stuart v London City Airport, S was a Ground Services Agent at the airport.  He was dismissed for attempting to steal goods from the duty free shop.  He said that whilst waiting to pay, he had been beckoned over to a seating area outside the shop by a colleague and went to speak to her, still holding the items.  When approached by the police, S argued he had no intention of stealing the items and he felt he was still in the general shop area.

The disciplinary officer interviewed the store manager (who had not seen the incident) and reviewed a written statement from a store employee who had.  The manager said he had been told by the store employee that S was hiding items under his coat and shortly after that S had left the shop.  D also reviewed the shop layout and concluded that the shop was clearly demarcated. 

S was summarily dismissed for dishonest misconduct and the employment tribunal found his dismissal fair.  On appeal, S argued that the allegations reflected seriously on his character and in those circumstances a reasonable investigation required more than ensuring he had left the shop.  The allegation that he had concealed the items should have been examined in greater detail, by looking at CCTV footage of the incident which was readily available.  In addition, the evidence of other witnesses should have been scrutinised in greater detail. 

The EAT agreed.  This was a serious allegation which went directly to S’s honesty and S was in a position of trust.  The crucial element in dispute was whether the items were concealed under S’s coat.  The employer had relied on the store manager’s evidence but he had not seen the incident and instead relied on what the store employee told him.  The store employee did not give evidence at the disciplinary hearing.  An investigation should include evidence which is exculpatory, particularly in cases where an employee’s honesty is in question.  The fact that the store employee's evidence directly contradicted that of S meant that further enquiry was required into the other available evidence.

The decision demonstrates that employment tribunals considering whether an employer has carried out a reasonable investigation before finding an employee guilty of misconduct will be looking for a more thorough investigation where an employee’s integrity is at stake.  In this case there was directly contradictory evidence on whether S had hidden the items under his coat and yet the employer did not interview the store employee who said that he had and did not review readily available CCTV footage which could well have backed up the dismissed employee's account.  Employers should therefore ensure that they carry out as thorough an investigation as possible where allegations of dishonesty are involved as any obvious gaps may lead to a finding that the investigation was inadequate and the dismissal consequently unfair. 

 

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