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.
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.