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Investigating Conduct – to what lengths should I go?

Investigations - FactsSUMMARY: Those of you who have had to conduct an investigation into an allegation of misconduct will be familiar with the ACAS Code of Practice on Disciplinary and Grievance Procedures and the requirement for a reasonable investigation. Failure to carry out a reasonable investigation can render any dismissal unfair.

What does ACAS say?

The key legal principle of any disciplinary process is fairness; and, thus, it follows that the investigation, which enables an employer to decide whether dismissal is justified, must be conducted fairly. What is fair will be dependent on the circumstances of each case but, in any investigation, the employee must be given an opportunity to respond to the allegations against him/her.

What lengths do employers need to go to?

Although it is difficult to give any guarantees about the lengths that will render an investigation fair and reasonable a recent Court of Appeal case – Shrestha v Genesis Housing Association Limited has given some guidance on this. In this case the court provided employers with reassurance that, where the employee gives a number of explanations for why the allegations are not true, it is not incumbent on the employer to go to the lengths of investigating each and every explanation.

The investigation into Mr Shrestha’s mileage expense claims

Genesis Housing Association Limited (Genesis) employed Mr Shrestha as a “floating” support worker, which meant that he was regularly travelling by car to see clients at various locations. Accordingly Mr Shrestha submitted mileage expense claims to Genesis for those journeys. In 2011, due to increasingly high mileage expense claims submitted by Mr Shrestha, Genesis conducted an audit of those claims. The audit included a comparison of the miles Mr Shrestha claimed he travelled for each journey against the miles given by an on-line AA route finder. This comparison established that Mr Shrestha’s claims appeared excessive. For example, in July 2011 he claimed that his journeys undertaken that month totalled 197 miles whereas, the AA’s suggested mileage for those same journeys totalled 99 miles.

Genesis therefore conducted an investigation into the allegation that Mr Shrestha had falsified his expense claims. At the investigatory meeting Mr Shrestha was asked about some of the journeys he had claimed for. He gave a number of explanations for the discrepancy between the miles he claimed he had driven and the AA’s suggested miles for those journeys. These explanations included.

Despite his explanations, Mr Shrestha was subsequently dismissed for gross misconduct. He claimed unfair dismissal on the basis that Genesis had not put every mileage discrepancy to him nor had it investigated every explanation Mr Shrestha put forward for those discrepancies, which were discussed during the disciplinary process.

The Court’s decision

The court decided that it was not necessary to put every journey to Mr Shrestha, nor was it necessary to investigate each of the explanations he gave as to why he was claiming for far more miles than the AA suggested for each of those journeys. This was because the audit had identified that each journey he claimed for significantly exceeded the AA’s suggested mileage for that journey, and it was therefore unrealistic that there could be a credible explanation for Mr Shrestha’s claims to exceed the AA’s suggested mileage in each and every instance. The court also paid attention to the fact that Mr Shrestha had claimed fewer miles for the same journey some 12 months or so ago and that the AA mileage took account of one way systems.

The court therefore concluded that it is not necessary for an employer to extensively investigate each line of defence advanced by an employee and that, ultimately, the key to deciding whether it is reasonable is to look at the investigation as a whole.

What does this mean for employers?

Although this case is to be welcomed by employers it is imperative that investigations are carefully planned in terms of what they should encompass to ensure reasonableness. This is particularly so in cases where dismissal as the outcome is a real possibility.

Case

Shrestha v Genesis Housing Association

Contact Details

For more details about conducting investigations and, more generally, disciplinary procedures please contact:

fgmedia@fgsolicitors.co.uk

+44 (0)808 172 93 22

This update is for general guidance only and does not constitute definitive advice.

Updated: by FG Solicitors
Call us on:  0808 172 93 22

INVESTIGATING CONDUCT € TO WHAT LENGTHS SHOULD I GO?

Investigations - FactsSUMMARY: Those of you who have had to conduct an investigation into an allegation of misconduct will be familiar with the ACAS Code of Practice on Disciplinary and Grievance Procedures and the requirement for a reasonable investigation. Failure to carry out a reasonable investigation can render any dismissal unfair.

What does ACAS say?

The key legal principle of any disciplinary process is fairness; and, thus, it follows that the investigation, which enables an employer to decide whether dismissal is justified, must be conducted fairly. What is fair will be dependent on the circumstances of each case but, in any investigation, the employee must be given an opportunity to respond to the allegations against him/her.

What lengths do employers need to go to?

Although it is difficult to give any guarantees about the lengths that will render an investigation fair and reasonable a recent Court of Appeal case – Shrestha v Genesis Housing Association Limited has given some guidance on this. In this case the court provided employers with reassurance that, where the employee gives a number of explanations for why the allegations are not true, it is not incumbent on the employer to go to the lengths of investigating each and every explanation.

The investigation into Mr Shrestha’s mileage expense claims

Genesis Housing Association Limited (Genesis) employed Mr Shrestha as a “floating” support worker, which meant that he was regularly travelling by car to see clients at various locations. Accordingly Mr Shrestha submitted mileage expense claims to Genesis for those journeys. In 2011, due to increasingly high mileage expense claims submitted by Mr Shrestha, Genesis conducted an audit of those claims. The audit included a comparison of the miles Mr Shrestha claimed he travelled for each journey against the miles given by an on-line AA route finder. This comparison established that Mr Shrestha’s claims appeared excessive. For example, in July 2011 he claimed that his journeys undertaken that month totalled 197 miles whereas, the AA’s suggested mileage for those same journeys totalled 99 miles.

Genesis therefore conducted an investigation into the allegation that Mr Shrestha had falsified his expense claims. At the investigatory meeting Mr Shrestha was asked about some of the journeys he had claimed for. He gave a number of explanations for the discrepancy between the miles he claimed he had driven and the AA’s suggested miles for those journeys. These explanations included.

  • diversions travelled due to road closures;
  • difficulties with parking; and
  • one way road systems.

Despite his explanations, Mr Shrestha was subsequently dismissed for gross misconduct. He claimed unfair dismissal on the basis that Genesis had not put every mileage discrepancy to him nor had it investigated every explanation Mr Shrestha put forward for those discrepancies, which were discussed during the disciplinary process.

The Court’s decision

The court decided that it was not necessary to put every journey to Mr Shrestha, nor was it necessary to investigate each of the explanations he gave as to why he was claiming for far more miles than the AA suggested for each of those journeys. This was because the audit had identified that each journey he claimed for significantly exceeded the AA’s suggested mileage for that journey, and it was therefore unrealistic that there could be a credible explanation for Mr Shrestha’s claims to exceed the AA’s suggested mileage in each and every instance. The court also paid attention to the fact that Mr Shrestha had claimed fewer miles for the same journey some 12 months or so ago and that the AA mileage took account of one way systems.

The court therefore concluded that it is not necessary for an employer to extensively investigate each line of defence advanced by an employee and that, ultimately, the key to deciding whether it is reasonable is to look at the investigation as a whole.

What does this mean for employers?

Although this case is to be welcomed by employers it is imperative that investigations are carefully planned in terms of what they should encompass to ensure reasonableness. This is particularly so in cases where dismissal as the outcome is a real possibility.

Case

Shrestha v Genesis Housing Association

Contact Details

For more details about conducting investigations and, more generally, disciplinary procedures please contact:

fgmedia@fgsolicitors.co.uk

+44 (0)808 172 93 22

This update is for general guidance only and does not constitute definitive advice.