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Misconduct Investigations: Leave No Stone Unturned?

When investigating an employee over alleged misconduct we are often asked the lengths to which an employer needs to go in examining the evidence before them prior to making the final decision of whether to dismiss, apply a lesser sanction such as a warning or indeed take no further action at all.

While this is a difficult question to answer with blanket advice, as naturally each instance of alleged misconduct is different and some will require more investigation than others, the term ‘reasonable’ is invariably the go-to term used in the advice provided.

In particular when an employer has a situation where the matter is factually heavy and there are a lot of avenues that could be explored, the question of whether the employer has to investigate every defence put forward by an employee is often central.

In the recent Court of Appeal case of Shrestha v Genesis Housing Association Limited, the Court was presented with this very issue to consider.

Mr Shrestha was a roaming support worker, a role which required him to travel by car to visit clients; he would then later claim back mileage from his employer in the standard fashion via his expense reports. Following an audit of his expenses over a three month period in 2011, his employer arrived at the conclusion that he had submitted claims for excessive mileage during this time. 

An example of this, given by Lord Justice Richards in his leading judgment on the case, was that in July 2011 Mr Shrestha had claimed for 197 miles in total, while the AA’s figure for the same journeys was only 99 miles.

Mr Shrestha argued that the high mileage was owing to a number of factors beyond his control, such as road works, difficulty in locating parking and one way road systems.

When investigating Mr Shrestha for alleged misconduct, his employer did not go through each journey individually and obtain the reason as to why it exceeded the expected mileage for such a trip. The employer’s rationale for this was that each and every journey he had made was in excess of the suggested miles.

The employer therefore concluded that it was not feasible that Mr Shrestha had a valid explanation for every journey. It therefore found that he had committed gross misconduct and dismissed him summarily.

The Employment Tribunal of first instance dismissed his claim for unfair dismissal, a decision which was then upheld by both the Employment Appeals Tribunal and latterly the Court of Appeal.

The Court of Appeal found that the tribunal correctly applied the long established test in British Home Stores Limited v Burchell, which has as part of its tenet that an employer should carry out as much investigation into a matter as was reasonable in the circumstances.

The Court of appeal therefore concluded that the employer’s investigation in this case was entirely reasonable, was not to be interfered with and that an investigation should be looked at as a whole when considering whether or not it was reasonable.

Conclusion

What is sometimes forgotten is that the ‘band of reasonable responses’ test applies to an investigation into alleged misconduct as well as the reasonableness of the decision to dismiss. The employer in the above case got it very much right in considering what would constitute a reasonable investigation.

The same employer could have spent excessive hours on investigating each journey had it not arrived at a course of action that was entirely reasonable, that is to dismiss on the basis that it was unnecessary to dig any deeper. It is unfortunate that this organisation then found itself being dragged through three full hearings, however this will have been owing to the novel point that needed consideration in a higher court, which as an employer is about as unlucky as you can get and is virtually unavoidable if it happens.

Naturally should you be faced with a similar decision as to what is ‘reasonable’ it is best to get in touch with your HR or legal advisors and let them consider this.

As always if I can provide you with any further assistance on queries relating to misconduct investigations or any other issue, please do not hesitate to contact me for a free consultation on 0113 350 4030 or samira.cakali@scesolicitors.co.uk


Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here.

Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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