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13 March 2015

Court of Appeal rules on required extent of investigation into misconduct

In a recent decision, the Court of Appeal has provided welcome clarification of the principles behind a reasonable investigation and an illustration of how thorough investigations into misconduct must be.

Background

If an employer believes an employee has committed an act of misconduct which might justify dismissal, as part of a fair procedure the employer should conduct a reasonable investigation.

The Employment Appeal Tribunal (EAT) has previously held that a dismissal for misconduct will only be fair if the employer believed the employee to be guilty of the allegations against them.  The employer must also show they had reasonable grounds for that belief, as a result of having carried out as much investigation as is reasonable in the circumstances of the case.  This is called the Burchell test.

A tribunal must therefore decide whether both the level of investigation undertaken by the employer, as well as the decision to dismiss the employee fall within a range of responses that might be taken by a reasonable employer in the same circumstances.  Employers often question how thorough they need to be in investigating alleged misconduct.

Facts

Mr S worked as a support worker and used his own car to travel to see clients at their homes.  He was entitled to claim expenses for his mileage by submitting details from his car’s milometer through an online form.

An audit showed that Mr S had claimed an unusually high mileage over a three month period, compared to the distance calculated using an online route-finder.  His employers commenced an investigation, which revealed significantly higher mileage claims than for the same journeys in the previous year.

At the subsequent disciplinary meeting, Mr S offered several explanations, such as road closures and difficulty in parking.  However, as the mileage he was claiming had been consistently higher than the route-finder indicated, the disciplining officer doubted there could be a plausible explanation.  He therefore refused to consider each journey in detail and Mr S was summarily dismissed.

Mr S brought a claim for unfair dismissal arguing that, as part of a reasonable investigation, his employer should have investigated every line of defence he had raised.  After his claim failed in the employment tribunal and EAT, Mr S appealed to the Court of Appeal.

Decision

The court unanimously rejected the appeal and found that the Burchell test did not necessarily require an employer to thoroughly investigate each line of defence.  Whilst an employer should consider any defences advanced, the extent to which those defences should be investigated depends on the circumstances of each case.  The court held that the investigation need not be perfect but tribunals should assess whether the investigation was reasonable as a whole.

In this case, the court rejected specific arguments that Mr S’ employers should have contacted the local authority to make enquiries about difficulty parking or road closures, which could have extended the distance Mr S needed to travel.  The court also determined that a reasonable investigation did not require the employer to recreate the journey.

The court concluded that the employment tribunal had correctly applied the Burchell test, as it had considered both what the employer did to investigate the allegation, as well as the reasons why it had not gone further.  The employer’s decision not to make further enquiries was reasonable in the circumstances.

Comment 

This decision provides a useful example of the factors an employment tribunal will consider in applying the Burchell test and the extent to which an employer should investigate defences raised by an employee.  It demonstrates effectively that an investigation must only be reasonable; an employer is not obliged to investigate every possible explanation put forward by an employee.

Obviously the extent to which defences should be investigated depends on the circumstances of each case.  However, a tribunal is unlikely to find that an employer should investigate all possible defences, where to do so would be disproportionate, or where there is a consistent body of evidence against the employee, or if the alternatives appear implausible.

The outcome might, however, be different in cases where the employee proactively provides the employer with detailed information to support their case, or which ought reasonably to prompt further investigation.  For example, had Mr S made enquiries with the local authority himself, the outcome of this case could potentially have been different.

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