Yagomba v AXA Services Ltd

In a conduct-dismissal case, the adequacy of an investigation must be assessed in the round. Serious and disputed allegations require a careful and conscientious inquiry, including proper attention to potentially exculpatory material, but an employer is not required to replicate a criminal investigation.

An isolated finding that an investigator appeared keen to find inculpatory evidence does not itself establish a closed mind or an unfair investigation. It is material whether the investigator found the relevant evidence, whether alleged exculpatory material existed or was available, and whether the tribunal permissibly found the investigator objective. An appellate tribunal must read the employment tribunal's reasons as a whole and must not subject them to unrealistically detailed scrutiny.

The Claimant appealed against the Bristol Employment Tribunal's dismissal of his unfair-dismissal claim. The Tribunal had rejected his challenge to an investigation into allegations that he had diverted funds connected with a partnership in which he had a financial interest.

Permission was granted only on a narrow point. The Claimant contended that the Tribunal's finding that the investigator had appeared overly keen to seek evidence supporting his suspicions required a finding that the investigation was closed-minded and unfair, particularly in light of Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721.

The central issue was whether, when read as a whole, the Tribunal's reasons disclosed perversity or an error of law in its conclusion that the investigation and dismissal process were fair.

1. Appeal dismissed. The Employment Tribunal's reasons, read as a whole, disclosed neither perversity nor an error of law.

2. The Tribunal had correctly directed itself by reference to the three-stage conduct-dismissal inquiry in BHS v Burchell [1980] ICR 303. It also recognised that serious, disputed and quasi-criminal allegations required particular diligence, while an employer was not required to provide the safeguards of a criminal prosecution.

3. The observation that the investigator appeared overly keen to seek evidence supporting his suspicions had to be read with the Tribunal's immediately following finding that he then found that evidence. It was not a finding that he discarded or manipulated material, or that he failed to seek evidence which was available and exculpatory.

4. The Tribunal was entitled to find that the alleged exculpatory material did not exist. It was also entitled to find the investigator ultimately objective and to attach importance to the independence of the disciplinary and appeal managers. The Claimant was the person able to provide material that might exculpate him, and an investigator could not investigate material outside the employer's possession, unknown to the investigator, or unavailable despite inquiry.

5. The challenged phrase could, in isolation, cause concern. However, the appellate tribunal must respect the Employment Tribunal's factual findings and avoid unrealistically detailed scrutiny of its reasons. The Tribunal's overall conclusion on the fairness of the process was plainly open to it.

• Employment Appeal Tribunal: appeal dismissed: [2018] UKEAT 0138_18_1110.
• Employment Tribunal, Bristol: dismissed the Claimant's claim in a judgment with reasons sent to the parties on 27 October 2017.