Is it within the range of reasonable responses for an employer to refuse to undertake further investigations which would support the account of an employee accused of gross misconduct?
Usually not, says the EAT in Stuart v London City Airport, as a reasonable employer will normally investigate such matters unless there is a good reason not to.
The Appellant was employed in a position of trust as a Ground Services Agent. He entered a duty-free store within the airport to buy some presents which he held in his hands. Whilst queuing, the Appellant was re-directed to another operative till by a member of staff. Once in the second queue, he was beckoned outside the store boundary to a seating area by another member of staff for a social conversation, at which point he was apprehended for dishonestly removing goods without payment.
In dismissing the Appellant, the Respondent relied primarily upon their conclusion that the Appellant had in fact left the store boundary with the unpaid items and upon the vigorously disputed evidence of a store assistant who informed her store manager that she saw the Appellant conceal items in his jacket before he left the store.
The evidence of the store assistant was never tested orally during the internal appeal or subsequent tribunal proceedings. During the former, the Respondent refused to interview the store cashier or the staff member who beckoned the Appellant outside of the store boundary. Moreover, the Respondent also failed to consider available CCTV footage of the Appellant’s movements inside the store which would have assisted in determining the allegation of concealment and therefore dishonest conduct.
In allowing the appeal, citing A v B, the EAT noted that serious allegations of dishonesty required careful investigation. As such, the EAT ruled that the failure of the Respondent to carry out potentially exculpatory investigations, which would have supported the Appellant’s account that he was at no time acting dishonestly, was objectively unreasonable and the tribunal’s conclusion to the contrary was therefore unsustainable