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Innocent until proven guilty?

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The central issue to the appeal in Stuart v London City Airport was the reasonableness of the employer’s investigation into the employee’s alleged dishonesty.

By way of background, the Claimant had worked for the Respondent for 8 years, he had an unblemished record and had recently been referred to as ‘excellent’ in his appraisal. While the Claimant was queuing to purchase several items in a shop in the Respondent’s premises, he was beckoned over to talk to another employee. After speaking to this employee, he walked over to different retail premises to purchase a drink. At this point, he was stopped by a Police Officer as he was suspected of dishonestly removing the goods from the first shop. The employee was suspended while an investigation was conducted into the matter.

During the investigation, the Respondent did not gather evidence from the member of staff that beckoned the Claimant over or the store assistant working in the shop at the time of the alleged incident. The Respondent also chose not to review the CCTV footage of the Claimant that was available.

The Employment Tribunal dismissed the claim of unfair dismissal on the grounds that the Respondent had formed a reasonable belief as to the Claimant’s dishonesty and breach of trust following a reasonable investigation.

The Claimant subsequently appealed on the basis that the Tribunal’s decision was perverse. He argued that, as the accusation was a serious allegation of criminal misbehaviour which questioned his integrity, it was necessary for the investigation to look into all the circumstances carefully. There had been significant dispute over the events that had occurred during the alleged incident and as such, there should have been further investigation into this.

The Respondent submitted that the Tribunal had correctly considered the appropriate law, the Claimant’s critique of the investigation and his unblemished record. As the Respondent had considered these issues before coming to their conclusion that the dismissal was fair, the decision of the Employment Tribunal was sustainable and should be upheld.

The Employment Appeal Tribunal (EAT) found that there had been several issues that went to the heart of the allegation of dishonest conduct which remained uncertain and further investigation could have clarified these. If the Respondent had taken further statements and reviewed the available CCTV footage, this could have given considerable clarity to the Claimant’s actions inside and outside the store.

The Judgment was clear that if an employee is in a position of trust and is suspected to have dishonestly taken goods from the premises where he works without paying for them, this allegation will always be serious. As a result, any such allegation will always require careful investigation. These investigations should always include evidence which might potentially justify the employee’s actions, or is consistent with the innocent explanation that is offered.

Trethowans’ view:

Employers should ensure that they do not ignore any available evidence when conducting an investigation into an employee’s conduct, especially evidence that supports the employee’s innocence. Employers should also remember that where the integrity of the employee is in question, a higher level of investigation will be required by the Tribunal. This is especially the case where the employee has a strong defence to the allegation. Without a thorough investigation, it will be difficult for an employer to illustrate that a dismissal based on this investigation was fair.

www.trethowans.com

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