Background

In Warren James Jewellers Ltd v Christy [2003] UKEAT 1041_02_1103 (11 March 2003) (bailii.org), the Employment Appeal Tribunal (EAT) heard an appeal against a finding of unfair dismissal where the Employment Tribunal found, unanimously, that the claimant, Ms Christy, had been unfairly dismissed.

This was based on the Tribunal’s conclusion that:

“the process and investigation carried out by the employers in relation to an allegation that the employee had taken £1,000 in cash, had not been a thorough investigation, it had not been a reasonable investigation and therefore the employers could not rely on that investigation as giving rise to a reasonable belief entitling them to dismiss the employee.”

EAT decision

The EAT agreed that the employer:

“did not carry out a reasonable investigation and therefore the belief they formed was not based on that reasonable investigation. We are particularly mindful of the criticism at the end of the decision where they refer to the fact that the investigating officer also acted as the disciplining and dismissing officer.”

The EAT agreed with the Tribunal’s conclusions that when conducting the investigation, the employer undertook a ‘paper-based’ approach and did not adopt a ‘cash-based’ approach, failing to check the money that remained in the safe for days after the issue arose (in breach of its own cash handling procedures). The employer also failed to undertake reasonable further investigations with the Post Office, no account was taken of the general availability on site of the safe keys and there was no follow up on the apparent failure of the manager to comply with her part of the process – namely, the second check and the signing off procedures in connection with balances and the cash takings.

As the initial workplace investigation was found to be lacking and unreasonable, the decision to dismiss was found to be unfair. 

Summary

Before making a decision to dismiss an employee for alleged misconduct, employers are required to follow a fair process and, based on that process, reach a reasonable decision.

In particular, there are long-standing legal principles that the employer must have: (a) believed the employee to be guilty of misconduct; (b) had reasonable grounds for that belief; and (c) carried out as much investigation as was reasonable. If the investigation process is unfair, the decision to dismiss will be unsafe and unfair.

Here, the finding of unfair dismissal was based on the employer undertaking a poor investigation and a lack of separation between the person investigating and the person deciding the disciplinary outcome.

These pitfalls can be avoided with some careful planning. It should usually be possible for an employer to appoint someone to conduct a thorough, fact-finding workplace investigation and then hand over to another person to conduct the disciplinary hearing itself. In some cases, it can be helpful for the employer to engage an independent, external investigator who is skilled in assessing the evidence and interviewing witnesses.

Ensuring the investigation is detailed and robust will enable employers to make decisions which are less susceptible to legal challenge. 

If you have a sensitive or complex workplace investigation, contact us for a robust solution to ensure you act appropriately and fairly.