Daniel Barnett: “In a suspected misconduct case does an employer have to investigate every line of defence put forward by an employee?
No, held the Court of Appeal in Shrestha v Genesis Housing.
In this case Mr Shrestha was employed as a floating support worker required to travel by car to see clients at their homes. An audit of his expenses claims for a three month period in 2011 revealed excessive mileage. For example the total claim for July 2011 was for 197 miles, whereas the AA figures for the same journeys totalled 99 miles.
The Claimant asserted that the high mileage he claimed was due to a number of factors, namely difficultly in parking, one way road systems and road works, causing closures or diversions.
The employee did not put each specific journey to the Claimant and analyse the purported reasons for the additional mileage. This was because every single journey that the Claimant had made was above the AA suggested mileage. It concluded that it was simply not plausible that there was a legitimate explanation for each and every journey. The employer concluded that gross misconduct had occurred and the Claimant was dismissed.
The employment tribunal dismissed a claim for unfair dismissal, a decision which was upheld by the EAT and Court of Appeal. According to the Court of Appeal the tribunal was required to apply the test in British Home Stores Limited v Burchell, which includes the employer carrying out as much investigation into the matter as was reasonable in the circumstances. But the band of reasonable responses test applies to an investigation into suspected conduct as well as to the reasonableness of the decision to dismiss.
The Court of Appeal considered that the employer’s investigation was reasonable and should not be interfered with. According to the Court of Appeal, to say that each line of defence put forward by the Claimant must be investigated unless it is manifestly false or unarguable is to adopt too narrow an approach and would add an unwarranted gloss to the Burchell test. The investigation should be looked at as a whole when assessing the question of reasonableness.