If we go back to basics, for a conduct dismissal to be  fair, the employer must have believed, and had  reasonable grounds for believing, that the employee  was guilty of misconduct at the point of dismissal and,  further, that at the time he held that belief, he had  carried out as much investigation as was reasonable1.

So what is reasonable?  Two cases have recently  considered the reasonableness of an employer’s  investigation in circumstances where criminal  allegations have been made against an employee.  

In Stuart v London City Airport Limited 2 , Mr Stuart was  employed by the airport as a ground services agent.  Whilst at work he picked up a number of items in the  duty free shop. He was then beckoned over by a  colleague in a nearby seating area whilst he was still  holding the items.  Mr Stuart was approached by a  police officer and arrested on suspicion of theft.   However, he argued that he could not have stolen the  items as he was still within the shop area when he  went over to speak to his colleague.  

In conducting an investigation into alleged gross  misconduct, his employer took statements from Mr  Stuart, the shop manager and an employee of the  shop.  In light of Mr Stuart’s argument that he had not  left the shop area, the focus of the investigation was  on whether this argument was credible.  In considering  the shop’s layout, the employer concluded that the  shop was clearly demarcated and that Mr Stuart could  not have genuinely believed he was in the shop area  when he went to speak to his colleague.  Having  reached this conclusion, the employer made its  decision; no other employees were interviewed and  the CCTV footage was not reviewed.  Mr Stuart was subsequently dismissed, although he was subsequently  acquitted of theft by a criminal court.  

Mr Stuart brought a claim of unfair dismissal. The Tribunal  at first instance held that he was fairly dismissed following  a reasonable investigation.  The Tribunal’s decision was  overturned on appeal to the EAT, but the Court of Appeal  subsequently found in favour of the employer, holding that  the Tribunal was reasonable in concluding that Mr Stuart  had been fairly dismissed following a reasonable  investigation. Mr Stuart’s claim that he had not left the  shop area had been thoroughly investigated and, as a result  of those investigations, his employer found it impossible to  accept that he could have been under the misapprehension  which he claimed. As such, no further investigations were  required. 

In the more recent case of Z v A 3 , the EAT considered the  dismissal of a school caretaker (“A”) accused of the historic  sexual abuse of a child.  A was suspended following the  allegations.  After nearly a year, A informed the Head  Teacher that the police wanted to drop the case against  him.  The Head spoke to the police officer in charge of the  criminal investigation and was told that the validity of the  claim was being investigated and that none of the witness  statements supported the allegation.  Despite being  provided with this information, two days later A was  dismissed on the grounds that trust and confidence had  broken down due to the serious nature of the allegations.   He subsequently brought a successful claim of unfair  dismissal which was appealed by the school.  The EAT  upheld the Tribunal’s decision that A had been unfairly  dismissed because the school had not conducted a  reasonable investigation into the credibility of the  allegations.

Comment

Bearing these decisions in mind, how far should Guernsey employers go in conducting an investigation  into a misconduct offence?

The Commerce & Employment Code of Practice on  Disciplinary Procedures makes it clear that employees  should not be dismissed solely because criminal  allegations have been made or charges against them  are pending.  An employer must be able to show that it  has carefully considered all of the evidence before it  and that it did not take an uncritical view of it.  Whilst  employers are not expected to leave “no stone  unturned”, their actions must fall within the range of  reasonable responses. 

So, what does this mean in practice? Our advice is that  if you are aware of information, or if it is reasonably  feasible for you to conduct your own investigations  which may result in you questioning the reliability of  the allegations, you must investigate the matter  further. You should assess for yourself the soundness of  what you have been told and not just take the  allegations at face value. All relevant information  should be taken into account in order for you to be able  to demonstrate that you have conducted a reasonable  investigation.