Miller v William Hill Organisation Ltd

Where an employee faces a disputed allegation of conduct amounting to theft or another criminal offence, the employer must carry out a careful and conscientious investigation. The inquiry must examine potentially exculpatory material as well as material pointing towards guilt.

The extent of the required investigation depends on the circumstances, including the time and cost involved and the consequences of dismissal. However, an employer cannot reasonably decline to examine readily available CCTV footage where it could confirm the employee's account or materially undermine the allegation. A tribunal's conclusion that such an investigation was sufficiently thorough may be set aside where it was not reasonably open on the evidence.

The claimant, a betting-shop deputy manager, was summarily dismissed after an audit identified four irregular betting transactions. The respondent believed that she had retained sums totalling £68.15 which should have been returned or paid to customers.

She brought an unfair dismissal claim. The London South Employment Tribunal dismissed it, holding that the respondent's investigation was sufficiently thorough. She appealed to the Employment Appeal Tribunal.

The central issue was whether the employer had conducted an adequate investigation, particularly whether it should have reviewed the full CCTV footage that might have supported the claimant's explanations about when customers received their money.

1. Appeal allowed. The Employment Appeal Tribunal set aside the tribunal's finding that the dismissal was fair and substituted a finding that the claimant had been unfairly dismissed.

2. Dismissal for alleged theft was a disputed allegation of criminal behaviour. Applying the approach in A v B, [2003] IRLR 405, and Salford Royal NHS Foundation Trust v Roldan, [2010] IRLR 721, the investigation had to be careful and conscientious. It had to address evidence capable of exculpating the claimant as well as evidence tending to prove the charge. The seriousness of the possible damage to the employee's reputation and future employment reinforced that requirement.

3. The necessary scope of an investigation is fact-sensitive. It depends on matters including the time and expense involved and the consequences of dismissal. Here, reviewing the full CCTV footage would not have taken long or involved expense. It could have shown whether customers had received their stakes or winnings earlier, as the claimant maintained. It could also have assisted in determining whether she could have obtained receipts allegedly discarded by customers.

4. The tribunal was not entitled to treat the claimant's inability to identify precise times as a sufficient answer. Her account was that, in three transactions, customers had been paid earlier than the computer records showed. Nor did the possibility that further footage might have strengthened the case against her answer the question whether the employer's investigation was adequate.

5. Mindful of the appellate restraint stated in Yeboah v Crofton, [2002] IRLR 64, the EAT concluded that the only reasonable conclusion was that the investigation had not been as thorough as the circumstances required. The case was remitted to the same tribunal, if possible, to assess compensation, including causation and contributory-conduct issues.

• Employment Appeal Tribunal: Allowed the claimant's appeal, set aside the finding that the dismissal was fair, and substituted a finding of unfair dismissal: [2013] UKEAT 0336_12_2106.
• Employment Tribunal, London South: Dismissed the claimant's unfair dismissal claim. No citation was stated in the judgment.