Misconduct dismissals: how far does an employer’s investigation have to go?

Misconduct dismissals: how far does an employer’s investigation have to go?

In Shrestha v Genesis Housing, the Court of Appeal considered how far employers should go when investigating an employee’s misconduct.

The background

Mr Shrestha was employed as a support worker and was required to travel by car to see clients at their homes.

When his employer carried out an audit of his expenses claims for a three-month period it revealed excessive mileage. For example, the total claim for July 2011 was 197 miles, whereas the AA figures for the same journeys totalled only 99 miles.

Mr Shrestha asserted that the high mileage he claimed was due to many factors. These included difficulty in parking, one-way road systems and road works causing closures or diversions.

During disciplinary proceedings, Genesis didn’t put each specific journey to Mr Shrestha. Nor did they analyse the purported reasons for the extra mileage, given that every single journey was above the suggested AA mileage.

Genesis concluded it was unlikely there was a legitimate explanation for every journey. Mr Shrestha was found guilty of gross misconduct and dismissed. He later issued a claim for unfair dismissal.

The ruling

The Employment Tribunal dismissed the claim and the subsequent appeals were also unsuccessful.

The Court of Appeal confirmed the well-known ‘band of reasonable responses’ test applies to an employer’s investigation into an allegation of misconduct, and that an employer is not required to pursue ‘every line of enquiry’ to satisfy the test.

In these circumstances, the Court concluded there was no need to put each single journey to the Claimant. Because it simply wasn’t plausible that there was a legitimate explanation for each and every journey, and the investigation into the employee’s response taken as a whole was reasonable.

What this means for you

This case doesn’t change the fact employers have a duty to investigate the misconduct, or its justifications, to such extent as is reasonable in the circumstances.

But it does confirm employers are not required to investigate every line of defence put forward by the employee to demonstrate they’ve carried out a reasonable investigation.

Need advice? We can help you

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Or email nls@gosschalks.co.uk.

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