How to conduct Disciplinary Procedures: Advice for Employers
Chris Dobbs looks at disciplinary procedures, outlining the importance of ensuring they are fair and the legal risks to avoid.
Shrestha v Genesis Housing
The Court of Appeal held that, in a suspected misconduct case, an employer does not have to investigate every line of defence put forward by an employee.
Mr Shrestha was 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. He asserted that the high mileage he claimed was due to a number of factors, including road works and closures.
The employer did not put each specific journey to the Claimant and analyse the purported reasons for the additional mileage. It concluded that it was simply not plausible that there was a legitimate explanation for each and every journey being longer than it should have been. The employer concluded that gross misconduct had occurred and the Claimant was dismissed.
The employment tribunal dismissed a claim for unfair dismissal, a decision which was upheld by both the EAT and Court of Appeal. The Court of Appeal confirmed that an employer has to carry out as much investigation into the matter as was reasonable in the circumstances.
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 the Claimant must be investigated unless it is manifestly false or unarguable is to adopt too narrow an approach. The investigation should be looked at as a whole when assessing the question of reasonableness.
In Practice
This decision will be of comfort to employers as it demonstrates that they do not have to go beyond what is reasonably expected in their investigations into misconduct allegations. The Claimant in this case was arguing that the employer should have analysed every line of defence he put forward in exhaustive detail, but this was held to be going too far. As long as an employer can show that they have done a reasonable investigation in the circumstances then any resulting dismissal will not be unfair.
At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Kate or Paul will be happy to discuss it with you.
