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Investigating Misconduct

27th February, 2015

In Shrestha v Genesis Housing Association Ltd [2015] EWCA Civ 94, the Court of Appeal has upheld an employment tribunal’s decision that an employee was not unfairly dismissed following a reasonable investigation into the excess mileage he was claiming.

Mr Shrestha, was a floating support worker who frequently travelled to clients’ houses. He was dismissed by Genesis Housing Association (the respondent) on grounds of misconduct for allegedly making false mileage claims.

After conducting an audit of Mr Shrestha’s mileage, the employer found that he had been claiming well in excess of the mileage recommended by the AA and RAC. The employer commenced disciplinary proceedings against Mr Shrestha and asked him to explain the excess mileage.

Mr Shrestha explained that the journeys had taken longer due to one way systems, road works and parking difficulties. The manager conducting the disciplinary hearing adjourned to consider Mr Shrestha’s explanation. Having considered two journeys that were made in 2010 and 2011, he found that all the journeys were in excess of the recommended mileage, but also that the mileage in 2011 was in excess of that claimed by Mr Shrestha in 2010. The manager concluded that Mr Shrestha’s explanation was not plausible and he was dismissed for gross misconduct.

The employment tribunal found that the employer had conducted a reasonable investigation. Mr Shrestha appealed, asserting that the tribunal should have not only considered the reasonableness of the initial investigation into the mileage, but should have also considered the reasonableness of the investigation into his response to the allegations.

The Court of Appeal disagreed with Mr Shrestha, upholding the employment tribunal’s decision.

As set out by the Court of Appeal in British Home Stores Ltd v Burchell (1980) ICR 303, the approach to take when considering the “range of reasonable responses” in unfair dismissal cases applies not only to the actual decision to dismiss, but also to the procedure adopted by the employer in putting the dismissal into effect. When conducting an investigation into misconduct, an employer would be well advised to consider the fairness of the investigation:

• The employer must believe the employee is guilty of misconduct;

• The employer should have reasonable grounds for believing that the employee was guilty of that misconduct; and

• At the time the employer held that belief, it had carried out as much investigation as was reasonable.

Each investigation should be considered as a whole and what is reasonable will depend on the circumstances. We would therefore advise that employer’s seek our professional advice and guidance prior to and throughout disciplinary proceedings in order to limit the risk of a successful claim against them.

For further information and advice, please contact Paul Bennett on 01743 453 685 or [email protected]

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