Stuart v London City Airport

In a misconduct dismissal, the Burchell requirement of a reasonable investigation is assessed by the objective standards of a reasonable employer and falls within the range of reasonable responses. A tribunal must not substitute its own view, and appellate intervention remains exceptional.

Where dismissal for dishonesty depends on disputed evidence, however, a reasonable investigation must fairly consider readily available evidence that may support an innocent explanation. An employer cannot reasonably rely on a disputed allegation of concealment while failing to investigate available witnesses and CCTV footage capable of confirming or disproving it.

The claimant, a Ground Services Agent with an unblemished record, was summarily dismissed for dishonesty and breach of trust after leaving a duty-free shop area with unpaid goods. He consistently denied concealing the goods and said that he intended to pay for them.

The Employment Tribunal dismissed his unfair-dismissal claim. It held that the employer had a genuine and reasonable belief in misconduct following a reasonable investigation under section 98(4) of the Employment Rights Act 1996.

On appeal, the only permitted issue was whether the Tribunal’s conclusion that the investigation was reasonable was reasonably open to it. The claimant contended that the employer should have investigated available till staff, another staff member and CCTV footage from inside the shop.

1. Appeal allowed. The Employment Tribunal’s conclusion that the employer had formed a reasonable belief in dishonesty on reasonable grounds after a reasonable investigation was unsustainable.

2. The objective reasonable-employer standard and the range of reasonable responses apply to the adequacy of a misconduct investigation as well as to the decision to dismiss. The EAT must not substitute its own assessment for that of the Employment Tribunal, and interference on a perversity challenge requires a high threshold.

3. That threshold was met on the particular facts. The alleged concealment of goods, whether the goods remained visible, and the circumstances in which the claimant moved outside the shop were central to the allegation of dishonesty. The employer’s decision-maker relied in part on a written allegation of concealment from a witness who did not give oral evidence.

4. A serious allegation of dishonest conduct against an employee in a position of trust required careful investigation, including evidence potentially consistent with the employee’s innocent explanation. The employer should have made further enquiries of the till staff and Lynette, who could have confirmed material parts of the claimant’s account. Available CCTV inside the shop was also potentially exculpatory on concealment. By contrast, footage of the central area would not have assisted on the already-inspected boundary issue.

5. The defects were not cured on the internal appeal. The case was remitted to a fresh Employment Tribunal, in particular to determine whether and to what extent the claimant contributed to his dismissal.

• Employment Appeal Tribunal: allowed the claimant’s appeal and remitted the case to a fresh Tribunal: [2012] UKEAT 0273_12_0911.
• East London Employment Tribunal: dismissed the claimant’s unfair-dismissal claim in reasons promulgated on 23 September 2011.