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24 September 2013

Fair dismissal for alleged theft

The Court of Appeal has recently overturned a decision of the Employment Appeal Tribunal (EAT), finding that an employee had been fairly dismissed for theft even though he had been acquitted following a criminal trial.

Facts

This case concerned an employee, S, who was a ground services worker at London City Airport.  He had a good work record, but was suspended and subsequently dismissed for allegedly attempting to steal items from the airport duty-free shop.

S had picked up a number of items in the shop, and was queuing to pay when he walked across to a seating area to speak to a colleague.  A police officer approached S and accused him of stealing items from the shop.

The employer investigated the allegations, obtaining statements from the shop manager and another shop employee, as well as S.  The store manager had been informed by the other employee that S was hiding items under his coat, although he had not himself seen S doing anything suspicious.

S claimed in his defence that he did not believe that he had left the area of the shop, so as part of the investigation the layout of the shop was examined.  However, CCTV footage from the shop was not viewed and no other witnesses were interviewed as part of the investigation.

S was summarily dismissed for dishonest conduct and breach of trust.  His appeal was unsuccessful.  He was subsequently acquitted of criminal charges of theft.

His claim for unfair dismissal was rejected by the employment tribunal, which found that the investigation carried out by the employer was reasonable.

Appeal to EAT

S appealed to the EAT, on the grounds that the tribunal’s decision was perverse.  He argued that the employer should have carried out a more thorough investigation, particularly in view of his previous unblemished record and the seriousness of the allegations. He claimed that CCTV footage should have been examined and that other witnesses, including the colleague he had been speaking to, should have been interviewed.

The EAT agreed, upheld his appeal and remitted his claim to be reheard by a new tribunal.  His employer appealed to the Court of Appeal.

Appeal to Court of Appeal

The Court of Appeal restored the original tribunal decision and held that S had been fairly dismissed, notwithstanding the fact that he had subsequently been acquitted of the criminal charges.

The investigation carried out by the employer during the disciplinary process had focussed on S’s assertion that he had never left the shop area.  At no point during that process had S suggested that further investigations should be carried out.  The employer was satisfied as a result of its investigations that S could not have been under the impression that he was still within the duty-free shop: it was clearly demarcated.  The employer was therefore justified in concluding that S was being untruthful in his account of events, and further investigations were not necessary.

Comment

This case is helpful in clarifying the level of investigation required by the employer, in the context of criminal allegations.

Where allegations are sufficiently serious as to potentially amount to gross misconduct, it is particularly important for the employer to carry out a thorough investigation.  However, the established test is whether the employer had a reasonable belief in the individual’s guilt, based on a reasonable investigation.

In carrying out a reasonable investigation into the individual’s principal assertion during the disciplinary proceedings (that he had not left the area of the shop), and, in the tribunal’s view, having reasonably concluded that the employee’s evidence was not credible, the employer in this case was not required to investigate any further.

Employers should note however, (as did the Court of Appeal in this case) that there may be circumstances where it is “plainly required” for an employer to go further in its investigations, even if it is not expressly requested to do so by the employee in the course of the disciplinary proceedings.

A copy of the Court’s judgment is available here.