Employment Law Case Update - March 2015
Burnetts' employment law solicitors look at the latest case law updates.
What is a reasonable investigation?
We are often asked exactly how much investigation employers need to do when looking into allegations of misconduct. A recent case on this matter Shrestha v Genesis Housing Association Limited, confirms that the investigation only has to be reasonable in the circumstances.
In that case, the Court of Appeal held that the employer was not obliged to investigate every line of the defence put forward by the employee and that failure to do so would not necessarily render an investigation process, and the decision that was based upon it, unfair or unreasonable.
Mr Shrestha had been employed by Genesis Housing Association Limited (“the Company”) as a floating support worker. He used his own car to travel to see Company clients at their own homes and then submitted mileage expense forms online for reimbursement of his travel costs. An audit of his travel expenses for a three month period in 2011 suggested that Mr Shrestha had over claimed on his mileage on almost every journey during that period.
The Company decided to investigate. They compared the distances/mileage claimed by Mr Shrestha during that three month period to the mileage that he had claimed for similar journeys the year before. The mileage claimed had significantly increased. The distances claimed were also checked against both the AA and RAC route finders. The information available on those websites suggested that the mileage being claimed was consistently twice as much as the distance actually travelled.
During the disciplinary hearing, Mr Shrestha argued that his mileage had increased because of difficultly in parking, one way road systems and road works which had caused road closures and/or diversions. The person chairing the disciplinary hearing focused on two of the many journeys in question. He was not happy with the explanation for the over claiming on those two occasions and decided that it was not plausible for there to have been a legitimate explanation for the fact that each and every journey claimed by Mr Shrestha was over the mileage suggested by the AA and the RAC. He decided that Mr Shrestha was guilty of gross misconduct and dismissed him. Mr Shrestha appealed but his appeal was rejected. He then brought claims against the Company for unfair and wrongful dismissal. His claim at the Employment Tribunal was unsuccessful.
Both the Employment Appeal Tribunal and now by the Court of Appeal agreed with the Tribunal’s assessment.
The Court of Appeal reiterated that, provided the employer has carried out as much investigation into the matter as was reasonable in the circumstances there won’t be any procedural errors in deciding not to look at every point.
Although Mr Shrestha had suggested that each journey could have been considered on its own individual merit and that, for example, the Company should have contacted the local authority to check whether parking arrangements had been changed and/or roads had been closed on the days in question, according to the Court of Appeal, it would be too restrictive to say that each line of defence put forward by the Claimant must be investigated. The investigation should be looked at as a whole. In this case, as all of the mileage appeared to be inaccurate, focusing on a couple of examples was a fair and reasonable approach.
This case does not present any new legal principles but it should provide comfort to employers who face rafts of counter arguments from employees. It is not to say that parts of the employee’s defence can be ignored. All arguments put forward should be considered. However, this case emphasises that employers do not have to look at everything “in minute detail”. A wider overarching approach may be possible in certain circumstances.
Employers who are dealing with difficult disciplinary situations and who want advice or assistance with investigations and disciplinary decisions should contact Natalie Ruane at Burnetts Solicitors on 01228 552222 or firstname.lastname@example.org.
Forwarding Indecent Images is a Breach of Contract
Most employers might have assumed that sending indecent images was a breach of contract but, in the case of Williams v Leeds United Football Club, Mr Williams had argued that he shouldn’t have been dismissed because the email, showing indecent images, which lead to his dismissal had been sent more than five years earlier and because he had never been shown a copy of his employer’s policy on internet and email use. However, the High Court recently found that neither of these factors prevented the dismissal.
Mr Williams had been employed as Technical Director by Leeds Football Club (“the Club”) from August 2006 until July 2013 when he was informed that he was to be made redundant. However, within a week of being given notice of redundancy, the Club summarily dismissed him on grounds of gross misconduct.
One of the terms of Mr Williams’ employment with the Club was that he would receive twelve months’ notice. The Club decided prior to issuing the notice of redundancy, that it did not want to pay twelve months’ notice pay and so the Club embarked on a “fishing expedition” to see if they could find reasons to dismiss Mr Williams sooner. Forensic experts were instructed to trawl Mr Williams’ computer and the day after Mr Williams had been given notice of redundancy it was discovered that he had forwarded an email containing obscene and indecent material from his work’s email account to a friend at another club. On the grounds that the sending of the email was an act of gross misconduct, Mr Williams was dismissed and the Club refused to pay him the balance of his notice pay (which was over £200,000) and immediately stopped all pension contributions and other contractual benefits. The Club also refused to pay the redundancy money.
Mr Williams appealed against his dismissal but the decision to dismiss was upheld. Mr Williams then issued a claim for damages in the High Court (presumably because the funds owed were far greater than he would receive had he issued proceedings for unfair dismissal in the Employment Tribunal).
After the Club had submitted its original defence to his claims, the Club discovered that Mr Williams had also forwarded the offensive email to two other people one of whom was a junior female employee at the Club.
Having heard all of the evidence, the High Court has recently upheld the Club’s actions and dismissed the claim.
The Judge decided that the sending of the email was a breach of the duty of trust and confidence that Mr Williams, as an employee, owed to the Club, particularly given his senior position, the nature of the images, the fact that sending the email could amount to harassment of a junior female employee and the potential consequences to the Club in terms of negative publicity. The fact that the Club had gone hunting for something of that nature was irrelevant. The Judge found that the Club had, therefore, been entitled to dismiss him without notice. The fact that Mr Williams had not been provided with a copy of the Club’s email and internet policy was not felt to be important. The Judge decided that it should have been obvious to someone in Mr Williams’ senior position that the Club’s email system should not be used to send offensive images of this nature.
Mr Williams’ seniority appears to have been one of the key factors in this decision. However, the case is still of comfort to employers as it shows that the existence or otherwise of a policy will not necessarily be determinative of fairness or otherwise of a decision in email and social media cases. It also shows that employers can take action when the incidents discovered are somewhat historic provided that action is taken as soon as possible after the discovery has been made and that nothing has been done to condone the behaviour in the meantime. In those circumstances, where the procedure followed is fair, the outcome for the employer is likely to be favourable. Having said that, employers who are dealing with issues of inappropriate internet use or offensive email traffic should contact Natalie Ruane at Burnetts for assistance on either 01228 552222 or by email: email@example.com.
About the author
Natalie is a Partner and leads the Employment Law & HR team and specialises in education.
Published: Friday 27th March 2015