Employers should take care to investigate allegations of dishonesty involving breach of trust particularly carefully, suggests the Employment Appeal Tribunal in Stuart v London City Airport.
Mr Stuart was one of 430 ground services employees at London City Airport who was dismissed for gross misconduct. It was alleged that he had gone to a duty free shop in the airport and taken goods without paying for them. His version of events was that a friend had beckoned him over for a chat while he was in the queue to pay for items, and he had not been aware of crossing the threshold of the shop, whereas one witness suggested that he had in fact tried to conceal the goods in his jacket. That witness was not present at any disciplinary hearing or appeal hearing, so her evidence could not be challenged, and the employer did not obtain evidence from other sources suggested by the other employee such as available CCTV, or likely witnesses including the friend or shop assistant manning the till, which could have confirmed or disproved the truth of the allegation of an attempt to hide items.
Since the conduct and scope of disciplinary proceedings is a common concern for many employers, it is worth spending a little time in considering the views of the EAT about what did happen and, more significantly, what should have happened. The facts are outlined in the decision as follows:
On the evening of 21 December 2009 the the Claimant entered Nuance, the duty free shop, to buy some Christmas presents. He chose some items which he stated that he held at all times in his hands; he accepted that he did not use a basket. He first went to pay for them at an un-manned till point, where he queued with another customer before a member of staff told him to go and pay at another till point because that one was closed. He moved over to a different till and began to queue again. During the whole of this period he stated that the items he had chosen were clearly visible in his hands.
What then happened was that he was beckoned over to a seating area immediately outside the shop by another Nuance staff member called Lynette, where she had a conversation with him about the snowy conditions at the airport that day. The Claimant then realised that he was due back from his break shortly and he moved to a refrigerated counter nearby to buy a drink. He still held in his hands the items for which he intended to pay. However, while he was selecting a drink, a police officer came to speak to him, on the basis that he was suspected of dishonestly removing goods from Nuance without paying for them.
The Respondents were informed and the Claimant was suspended on full pay, with effect from 21 December, pending an investigation into alleged gross misconduct involving breach of trust.
The matter was then investigated by the Respondents, as his employers. Statements were taken from Mr Gilani, the Nuance store manager, and from a Nuance staff member, Ms Adenike Adenekan. Strangely, in view of the significance of her evidence, which was very much in dispute, Ms Adenekan did not give evidence, either at the disciplinary hearing or before the Tribunal. Mr Gilani did, on both occasions, and the Tribunal also had his statement which had been made at the time. Mr Gilani’s evidence was that Ms Adenekan had reported concerns that an airport employee inside the shop, later accepted to be the Claimant, was secreting items from the purchasing section under his jacket. The Claimant vigorously denied that. As a result of Ms Adenekan’s report Mr Gilani went on to the shop floor, where he stayed for between 10 and 15 minutes. During that time he saw that there were no other customers in the shop and no queues. He stated that baskets were available for customers but that the Claimant was not carrying a basket.
It is common ground that, save for noticing that the Claimant was not carrying a basket, which was not in dispute, Mr Gilani did not himself see the Claimant do anything suspicious while he was there. He then gave Ms Adenekan the task of watching the Claimant and left the shop. A short while later Ms Adenekan came to find him to say that the Claimant had left the shop and that she was 100% certain that he had taken items from the shop. Mr Gilani then approached airport security and the police became involved. The Tribunal accepted Mr Gilani’s account of events.
Now, it is open to us as readers to form an impression and perhaps even reach a snap judgement about what happened and, in particular, whether Mr Stuart intended and/or attempted to steal the itmes which he was holding. However, that is far from sufficient for an employer contemplating dismissal based on alleged gross misconduct.
The EAT considered the approach adopted and started with the question of whether in all the circumstances, including the size and administrative resources of the employer’s undertaking, the employer acted reasonably or unreasonably in treating Mr Stuart’s misconduct as a sufficient reason for dismissing him and whether his dismissal was in accordance with the equity and substantial merits of the case. Pursuant to the very well known case of BHS V Burchell it was necessary to consider whether the employer had a genuine belief in Mr Stuart’s misconduct, based on reasonable grounds and following a reasonable investigation. Further, throughout the disciplinary process were the procedure adopted and the decision to dismiss both reasonable and within the band of reasonable responses of a reasonable employer. It was noted with approval that the employment tribunal did not attach weight to the fact that Mr Stuart was subsequently acquitted of the criminal charge of theft (since this could not have played any part in the fairness or not of the process leading to the dismissal).
In this case, the Employment Appeal Tribunal paid particular attention to the fact that the allegation raised a question of Mr Stuart’s honesty and he had a previously unblemished record, holding a position of trust within the ground services department. The store manager who gave evidence had not seen Mr Stuart conceal any items; this allegation came from a witness statement made by an employee who was not available at either the disciplinary or the appeal hearing, or even at the employment tribunal. The fact that Mr Stuart was not carrying a basket was not in itself sufficient to demonstrate a dishonest intention. There were clearly serious allegations and they required careful investigation. In this case the evidence was insufficient to reach the conclusion that Mr Stuart was guilty of gross misconduct. The employer could have carried out more detailed investigations and chose not to. It could not be said that the employer had formed a reasonable belief of dishonesty and breach of trust on the part of Mr Stuart, based on reasonable grounds and following a reasonable investigation.
It was therefore necessary for the matter to be re-heard by a fresh tribunal.
Although for many this will be very familiar territory, nonetheless it is remarkable how many employers fail to observe the basic principles and consequently find themselves on the wrong end of unfair dismissal claims.