Moncrieffe v London Underground Ltd

Under section 98(4) of the Employment Rights Act 1996, the reasonableness of a misconduct dismissal remains a single objective standard. Grave allegations and potentially serious consequences require a careful and conscientious investigation, including proper attention to potentially exculpatory evidence. That requirement applies to employees generally and does not create a separate or heightened legal test for professionally qualified employees.

An Employment Tribunal and an appellate court must not substitute their own assessment of the evidence or of the reasonable employer's response. The question is whether further investigative steps were reasonably necessary in the circumstances. A reasonable investigation may be sufficient although potentially relevant witnesses were not interviewed, where their evidence would not materially assist the employee's account.

The Claimant, a train maintenance employee with 14 years' unblemished service, was summarily dismissed for dishonestly claiming ownership of a wallet found on a train. The Respondent concluded that the wallet belonged to the train driver and rejected the Claimant's evolving account that he had briefly entered the relevant train and lost his own wallet there.

An Employment Tribunal at Watford rejected his unfair-dismissal claim. The Claimant appealed, contending that the investigation was unreasonable because the driver was not questioned further and a manager, Mr Harding, was not interviewed. He relied on the gravity of the allegation and the consequences of dismissal. The central issue was whether those investigative omissions disclosed an error of law in the Tribunal's conclusion that the investigation and dismissal were reasonable.

1. Appeal dismissed. The Employment Tribunal had correctly directed itself on section 98(4) of the Employment Rights Act 1996, the need for reasonable grounds and a reasonable investigation, and the band of reasonable responses.

2. Serious allegations of misconduct, especially where they may damage future employment prospects, call for careful and conscientious investigation. That consideration is not confined to professional employees. It does not, however, establish a separate heightened or higher legal test. The applicable test remains the ordinary statutory question of reasonableness in all the circumstances.

3. The EAT's function was confined to errors of law. It had to avoid re-evaluating the evidence, undertaking a forensic merits review, or substituting its view of the investigation or the employer's response. Read fairly and as a whole, the Tribunal's reasons showed that it had assessed whether the employer acted reasonably rather than made its own factual decision.

4. It was open to the Tribunal to find the investigation reasonable. Until the appeal stage there was no apparent basis for treating Mr Harding as a material witness. His evidence could at most have placed the Claimant near the train and would not have corroborated entry into its cab. The review officer also had sufficient information about inconsistencies in the wallet descriptions and could reasonably conclude that no further interview of the driver was necessary.

5. The employer had reasonable grounds to believe that the wallet belonged to the driver and to reject the Claimant's account. It followed that the investigation, procedure and summary dismissal for misconduct fell within the range of reasonable responses.

• Employment Appeal Tribunal: dismissed the Claimant's appeal and upheld the Employment Tribunal's rejection of the unfair-dismissal claim: [2017] UKEAT 0235_16_2001.
• Employment Tribunal, Watford: rejected the Claimant's unfair-dismissal claim in reserved reasons sent to the parties on 27 October 2015.