Kenyon Road Haulage Ltd v Kingston

In a misconduct dismissal, the tribunal must assess whether the employer held a genuine belief in misconduct, based on reasonable grounds following a reasonable investigation. It does not decide whether the employee was in fact guilty of theft or other misconduct.

A dismissal may be unfair where the investigation is inadequate, the employer lacks reasonable grounds for its belief, or the employee is not given sufficient notice of the allegations. Reasons are adequate if, read as a whole, they make clear why the case was decided.

The employer appealed from the decision of an Employment Tribunal, sent to the parties on 27 June 2013, that its dismissal of the claimant was unfair.

The claimant, a fleet engineer, was dismissed for gross misconduct after selling scrap from the employer's garage and distributing the proceeds among garage staff. He maintained that the practice had continued for years and was known to, or accepted by, management. The Tribunal found that the employer had not conducted a reasonable investigation, lacked the requisite genuine belief on reasonable grounds, and had failed to specify the allegations adequately.

The appeal concerned the application of the Burchell test, the adequacy of the procedure, and whether the Tribunal's reasons were sufficient.

1. Appeal dismissed. The Employment Tribunal made no error of law in finding the dismissal unfair.

2. The Tribunal's Reasons, although not clearly structured between findings of fact and narration of evidence, were adequate when read as a whole. They made sufficiently clear why the employer had lost, and therefore met the standard in Meek v City of Birmingham DC [1987] IRLR 250.

3. The Tribunal was entitled to find procedural unfairness. The disciplinary letter did not specify the alleged conduct in adequate detail, including when it was said to have occurred, how often, or which scrap was in issue. It was also entitled to find deficiencies in the investigation and in the employer's identification of the policy said to have been breached.

4. The Tribunal applied the Burchell inquiry. It permissibly concluded that the employer had not carried out a reasonable investigation and consequently had neither a genuinely held belief nor reasonable grounds for believing that the claimant had committed gross misconduct.

5. Actual criminal guilt was not the issue. An employee may be fairly dismissed for gross misconduct although not guilty of theft, provided that the employer reaches a genuine belief on reasonable grounds after a reasonable investigation. On the Tribunal's findings, that standard was not met. The procedural deficiencies reinforced the conclusion that the dismissal was unfair.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal's finding of unfair dismissal was upheld.
• Employment Tribunal: Employment Judge Feeney, sitting alone in Manchester, held that the claimant had been unfairly dismissed; the decision was sent to the parties on 27 June 2013.