Better not to gamble? – unfair dismissal and the need for a thorough investigation

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Posted in:HR and Employment|July 23, 2013 | Join the mailing list

A recent case has highlighted the importance of employers carrying out a thorough investigation where one of their employees is suspected of serious misconduct.

In order for a misconduct-related dismissal to be fair, it’s not enough for the employer to have a genuine belief that the employee committed the misconduct. That belief must be a reasonable one for the employer to hold and it must be based
upon a reasonable investigation. The employer also must have followed a fair and reasonable disciplinary process, with a disciplinary hearing having taken place and with the employee also having been given a right of appeal against the decision to dismiss
them. Dismissal must be a reasonable penalty for the employer to impose in all of the circumstances.

Where the alleged misconduct is of such a high degree of seriousness that it involves alleged criminal behaviour on the part of the employee, then in order for the investigation to be fair and reasonable, it will need to be particularly thorough
and more so than might be the case in other circumstances. This is because if the employee is dismissed as a result of the misconduct, then their reputation is likely to be seriously damaged and it may well then be very difficult for them subsequently to find
further employment in their chosen field.

In the case of Miller v William Hill Organisation Limited, Ms Miller, a deputy manager at one of William Hill’s betting shops, was dismissed after the company made a finding that she had stolen money that ought to have been handed over to
customers of the company. Prior to dismissing her, the company carried out an investigation into the alleged theft and an important part of that investigation involved the company looking at CCTV footage showing Ms Miller in the betting shop. However, the
investigation did not involve the company looking at the whole of the CCTV footage and also did not involve anyone checking that the time of day shown on the footage corresponded with other evidence as to when certain actions on the part of Ms Miller took
place.

The Employment Appeal Tribunal concluded that the company’s investigation had fallen short of what was required and that consequently the decision to dismiss Ms Miller was unfair. It was reasonable to expect the employer, as part of the investigation,
to be more thorough than it had been, especially given the nature of what was alleged against Ms Miller. It would not have taken long for the company to examine the whole of the CCTV footage as part of the investigation and that is what it therefore should
have done.

Nigel Crebbin, partner in the employment law team at Berg, comments that this case is a useful reminder of the dangers involved in employers cutting corners when it comes to carrying out a disciplinary process.

"It’s always useful to bear in mind, when you are looking into allegations of misconduct, that you might one day end up having to defend your actions under cross examination in the employment tribunal. While the underlying principle of unfair
dismissal law is that as an employer you must behave reasonably in all the circumstances, it’s advisable, if you want to reduce your level of risk as much as you can do, to be willing to go the extra mile in your investigation. This will ensure that you are
as well armed as you can be to defend yourself against any unfair dismissal claim. If you do decide to limit the extent of your investigation and disciplinary process, then it’s a question of assessing the level of commercial and financial risk that that involves."

 
For more information about any of the above or for practical commercial advice on this or any other aspect of employment law, please contact Nigel Crebbin of the Berg Employment Team on 0161 833 9211 or email him at
nigelc@berg.co.uk.

Follow us at Twitter: #BergHR.

The information and opinions contained in this article are not intended to be comprehensive, nor to provide legal advice. No responsibility for its accuracy or correctness is assumed by Berg or any of its partners or employees. Professional
legal advice should be obtained before taking, or refraining from taking, any action as a result of this article.

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