Some reassuring guidance for employers on the conduct of disciplinary investigations from the Court of Appeal last week – not new law but a clear and helpful analysis of just how far you have to go to investigate an employee’s defence.
Mr Shrestha was employed by Genesis Housing Association as a support worker, a role which required driving around East London to see clients at their homes. He used his own car and was entitled to a set figure by way of expenses for each mile driven. An audit in 2011 revealed that Mr Shrestha’s claimed mileage between the office and certain addresses visited (in fact all the addresses visited) was generally nearly double the distance suggested by the AA or RAC online route-planners.
Disciplinary proceedings were convened at which Mr Shrestha sought gamely but unsuccessfully to explain the discrepancies by reference to difficulties parking at some addresses, one-way road systems and diversions caused by road-works. He pursued his unfair dismissal claim as far as the Court of Appeal, making a number of criticisms of the investigation carried out by the Association. In particular, he said that the Association’s disciplinary officer should have:-
(i) driven the same journeys himself to understand his traffic issues;
(ii) checked with the local council to see where there had been road works and diversions months earlier when the offending expenses had been claimed; and
(iii) looked at each individual trip to determine the availability of public parking nearby.
The Association had done none of these things, taking its stated belief in Mr Shrestha’s dishonesty merely from the invariable and material excess of miles claimed over the route-finder distances for the same journeys. This, said Mr Shrestha, failed the long-established unfair dismissal requirement that belief in an employee’s culpability should be based on “as much investigation into the matter as was reasonable in all the circumstances of the case”.
The Association said it had been reasonable. After all:-
(i) the dismissing officer could not realistically recreate the effect of road works and diversions which had long since been removed;
(ii) missing a turn-off due to roadworks would add very little to the journey length (the only recorded exception to this being the A38 through Birmingham where even a moment’s inattention will see you flung helplessly out to Bromsgrove in no time at all);
(iii) the extra distance claimed to arise from parking difficulties was such that if Mr Shrestha were telling the truth, he had regularly ended up parked further from the client’s address than when he had set out from the office; and
(iv) the sheer number and regularity of over-claims ruled out any chance of their all being inadvertent or the product of random traffic issues.
The Court confirmed that Employment Tribunals should apply the “range of reasonable responses” test, meaning in practical terms that employers need not go down every investigative alley proposed by the employee where:-
(i) to do so would add little or nothing to the existing weight of evidence;
(ii) it would make no difference to the employee’s overall position even if he were telling the truth in that particular respect; or
(iii) there are material practical difficulties in a meaningful investigation, e.g. due to the passage of time, the departure of prospective internal witnesses or the proposed involvement of external third parties. Here the investigation may not have been totally comprehensive but it was nonetheless reasonable. There was very little which the Association could have done by way of further investigation. In addition, even if on some occasions Mr Shrestha had been telling the truth, it was beyond implausible that he was doing so every time.
A decent contemporaneous note of why the employer chose not to pursue any given avenue of enquiry will also stand it in very good stead.