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Unfair dismissal and investigations

Tuesday, February 24, 2015

How much investigation into misconduct allegations does an employer need to do?

This was the question considered by the Court of Appeal in the recent case of Rajendra Shreshtha -v- Genesis Housing Association Limited.

Background

Mr Shreshtha was employed by the Housing Association as a support worker.  As part of his role, he travelled by car to see clients at their home address.  For this, he was entitled to expenses for mileage travelled.  He was also entitled to an "essential car user allowance" of £1,000 a year if he drove at least 2,500 business miles a year.

In 2011, Mr Shreshtha claimed the extra allowance together with his mileage expenses.  As he had not claimed the allowance before, this prompted an audit into his mileage claims.  The audit revealed that his mileage for the two month period  June to July 2011 was consistently much higher than the AA route-finder figures for the same journey.  It later transpired that his mileage for this period was almost double that on the AA route-finder and also higher than those using the RAC route-finder.  His mileage for this period was also far higher compared to the same journeys in November and December 2010.

At the disciplinary hearing, Mr Shreshtha's defence was that the high mileage was due to difficulty in parking, one-way road systems, and road works causing closures or diversions.  The employer considered these, but held that they did not explain the reason for the high mileage claims.  As a result, Mr Shreshtha was dismissed for gross misconduct for over-claiming his mileage expenses fraudulently.

Mr Shreshtha claimed unfair dismissal.  This was not upheld by the Employment Tribunal, and so he appealed to both the Employment Appeal Tribunal and subsequently to the Court of Appeal.

Was the investigation reasonable?

One of the grounds for Mr Shreshtha's appeal to the Court of Appeal was on the basis that his employer had dismissed him without investigating all of his lines of defence.  He suggested that his employer should have recreated the journeys and/or called the local highway authority about the road works at the time. 

However, the Court of Appeal considered that such additional investigation was not necessary.  The employer had obtained the AA and RAC mileage calculators, compared the mileage claimed for the same journeys in November and December 2010 , and had given the employee a full opportunity to explain the apparent discrepancies.  The employer had then gone on to consider all of the explanations put forward by Mr Shreshtha and assessed that these did not provide a plausible reason why every single journey had a higher mileage.  The Court of Appeal considered that this was a reasonable assessment by the employer in the circumstances.

Comment

It can be a difficult for employers to know how much investigation to undertake.  Employers should certainly consider any defences advanced by the employee (as the Housing Association did in this case), but whether it is necessary to carry out a specific inquiry into them will depend upon the circumstances as a whole. 

 

 

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