New guidance has emerged from the Court of Appeal in the case of Stuart v London City Airport concerning an employer’s duty to conduct investigations before dismissing staff in cases of alleged gross misconduct.

Where misconduct is alleged the Burchell Test requires that at the time of dismissal the employer must have

(a) believed the employee to be guilty of misconduct

(b) had reasonable grounds for believing the employee is guilty, having carried out ”as much investigation into the matter as was reasonable in all the circumstances of the case”.^[1]

In Stuart v London City Airport the court has shed new light on the depth of investigation required to fulfil the requirement of reasonable investigations at (b) above.

The Facts

Mr Stuart had worked in ground services at London City Airport since 2005. In all the time that he had worked there he had held an unblemished disciplinary record and had been rated as excellent in the majority of his appraisals. Shortly before Christmas 2009 Mr Stuart has entered the Duty Free Shop at the airport intending to buy Christmas presents. He selected items, which he held in his hands, and queued at the till. He was then told that he should go to another till as that one was closing. Whilst queueing at the new till he was beckoned over to a seating area outside the shop by another member of the duty free shop staff whom he knew. Realising that his break time was drawing to a close, Mr Stuart moved to a refrigerated counter nearby to buy a drink. He was still holding the items visibly in his hands, although there was written evidence that he attempted to conceal the item the veracity of which could have been checked by CCTV. Whilst at the drink counter, Mr Stuart was approached by a police officer who had been alerted by the shop staff that he had dishonestly removed items from the shop without paying for them. Mr Stuart was suspended pending an investigation and subsequently dismissed for gross misconduct.

Mr Stuart maintained throughout that he had held the items visibly in his hands and had every intention of paying for them. He declared in his statement that he had thought that he was still in the general area of the shop. He subsequently made a claim for unfair dismissal. The aspect of the dismissal which was referred to the Court of Appeal was the reasonableness of the investigation carried out by the respondents.

Nature of the Investigation

The investigation was carried out by the respondents who interviewed a staff member and and the manager of the store. In addition, they also considered Mr Stuart’s assertion that he believed himself to be within the shop boundaries at all times. On investigating the boundaries, it was decided that these were clearly denoted by a line of mosaic tiles and it was further noted that the staff in the other shops wore different uniforms and each shop had its own signage.

The claimant’s belief that the nature of the investigation was not sufficiently thorough to permit the finding of dishonest conduct and breach of trust centred of the respondents failure to

(a) question the member of staff who had been serving at the till that the had gone to initially to pay

(b) question the member of staff whom he had spoke to at the seating area.

Conclusions

The judges at appeal reiterated the finding in Hitt that a tribunal must not substitute its own views with those of a reasonable employer. Confirming that the reasonableness of the employers’ investigation is to be considered by the objective standards of the reasonable employer, having regard to the particular circumstances of the case. They went on to note, however, that the respondents’ investigation focussed on one aspect of the claimant’s denial of guilt surrounding the alleged theft: the shop boundaries. The other exculpatory elements of the claimants case, namely that members of staff at the tills and the seating area were not interviewed and that CCTV within the store was not considered were ignored by the respondent in their investigation and as such the respondents were not reasonable in their view. As was made clear in the case of A v B, investigations should include evidence which might potentially be viewed as exculpatory in cases of serious allegations of criminal misbehaviour.

The case has been remitted to a fresh tribunal for rehearing.