Employer’s Investigation into Alleged Theft Reasonable

An investigation carried out into allegations of theft was reasonable, even though further lines of inquiry existed which were not investigated.

In Stuart v London City Airport, S was a Ground Services Agent at the airport. He was dismissed for attempting to steal goods from the duty free shop. He said that whilst waiting to pay, he had been beckoned over to a seating area outside the shop by a colleague and went to speak to her, still holding the items. When approached by the police, S argued he had no intention of stealing the items and he felt he was still in the general shop area. The tribunal found that the employer’s investigation was reasonable and that the dismissal was fair.

The EAT held that a higher threshold was required in terms of what amounts to a reasonable investigation where an employee is dismissed for alleged dishonesty. Potentially exculpatory evidence should be thoroughly explored, particularly where the allegation is serious. The employer’s failure to examine in greater detail the allegation that he had concealed the items, by looking at CCTV footage of the incident which was readily available and considering the evidence of other witnesses made the investigation unreasonable.

The Court of Appeal overturned the EAT decision. The focus of S’s defence in the disciplinary and appeal hearings had been that he had never left the duty free department, or at least genuinely believed he had not done so. The employer had thoroughly examined this defence and concluded that it was clear S could not have been under the impression he was still in the duty free department. The CA held that this finding showed that S had advanced an untruthful defence which reflected on his credibility. It was therefore entitled to prefer the evidence of the other witnesses (which indicated he had concealed the items before leaving the shop) to that of S and further investigation was not required.

This case demonstrates that an employer’s disciplinary investigation can still be reasonable, even where certain lines of inquiry are not pursued. It does not have to leave no stone unturned. The issue in each case will be whether the investigation was reasonable, not whether the employment tribunal would have done more. In this case, the employer had investigated the defence put forward at the disciplinary hearing thoroughly and concluded it did not stack up. In those circumstances, it was not required to investigate further.