Monji v Boots Management Services Ltd

In a misconduct dismissal, fairness under section 98(4) requires an assessment of the employer’s genuine belief, reasonable grounds and reasonable investigation. Where allegations are grave and may seriously affect the employee’s future career, the investigation must be subjected to particularly careful scrutiny. It must conscientiously pursue potentially exculpatory as well as inculpatory evidence, although it need not replicate a criminal trial.

The requirement is one of substance. An Employment Tribunal need not expressly cite the heightened-scrutiny authorities if its reasoning shows that it applied the requisite standard. An appellate tribunal must read the reasons as a whole and must not substitute its own view for that of the Employment Tribunal.

The Claimant, a pharmacist and store manager, was summarily dismissed for gross misconduct after the Respondent concluded that he had stolen a large quantity of fragrance testers. The Employment Tribunal dismissed his unfair-dismissal claim. It found that the Respondent had a genuine and reasonable belief in his guilt after a reasonable investigation, and that dismissal was within the range of reasonable responses.

On appeal, the Claimant argued that the Tribunal had failed to apply the heightened scrutiny required where dismissal might damage an employee’s career. He also challenged aspects of the evidence, the investigation, and the handling of material at the internal appeal stage. The central issue was whether the Tribunal had, in substance, applied the required level of scrutiny to the Respondent’s investigation and decision.

1. Appeal dismissed. The Employment Tribunal was entitled to find that the Respondent had acted reasonably in dismissing the Claimant for misconduct.

2. The governing question was fairness under section 98(4) of the Employment Rights Act 1996. Applying British Home Stores Ltd v Burchell, the Tribunal had to assess whether the employer genuinely believed the employee guilty, had reasonable grounds for that belief, and had carried out a reasonable investigation. The Tribunal correctly directed itself that it must review the employer’s decision rather than substitute its own view.

3. The potential damage to the Claimant’s professional career was a relevant circumstance. The allegations therefore required a careful and conscientious investigation, including consideration of material capable of pointing to innocence. That heightened approach does not require the safeguards of a criminal trial.

4. The Tribunal’s failure expressly to refer to the Roldan line of authority was not material. The question was one of substance: whether it had scrutinised the investigation to the requisite standard. It had done so. The case was not dependent on an untested conflict between the Claimant and a single witness. There was an evidential matrix which included the unusual order, the disappearance of the testers, the Claimant’s movements, and the independent and corroborative accounts of Mr Henrich and Mr Maloo.

5. The identified factual errors and procedural criticisms did not show that a further line of inquiry would have unravelled the case against the Claimant. The evidence of the principal witness had been tested at both dismissal and appeal stages, and the Claimant’s reconstruction evidence had been considered. The Tribunal was entitled to conclude that the investigation and dismissal fell within the range of reasonable responses.

• Employment Appeal Tribunal: Appeal dismissed on 20 March 2014.
• Employment Tribunal, Watford: On 30 May 2012, dismissed the unfair-dismissal claim. It found the dismissal was for conduct, that the investigation and belief were reasonable, and that dismissal fell within the range of reasonable responses.