Your employer’s investigation has to be reasonable, not just their decision to dismiss.
“An employer's investigation is judged by whether a reasonable employer would call it fair, so gaps in the investigation can matter as much as the decision itself.”
An employer's investigation is judged by whether a reasonable employer would call it fair, so gaps in the investigation can matter as much as the decision itself.
- Give your account early and in writing, and name witnesses or checks that should be made.
- Point out any obvious step the investigation skipped or any explanation it ignored.
- Raise investigation failings at the hearing and repeat them on appeal.
The situation
An employee worked as a baker for a large supermarket. Items were found in the employee's locker at work, and the employer treated this as suspected theft and dismissed him. The employee said the items had been planted, and that others had the opportunity to place them there. A majority of the employment tribunalAn independent court that hears disputes between employees and employers. It is free to bring a claim as a claimant, and most hearings take place in public. found the dismissal unfair, taking the view that the employer had not eliminated the possibility of a plant or interviewed everyone who might have had access. The employer appealed.
What the court found
The Court of Appeal ruled that the same test governs the investigation as governs the decision to dismiss. That test asks whether the employer's approach fell within the range of responses open to a reasonable employer, judged by an objective standard, and a tribunal must not simply substitute its own view of what it would have done. Applying that test, the court found the employer's investigation was reasonable in all the circumstances and the dismissal was fair. The tribunal's decision had been based on the wrong test and was set aside.
Sainsbury's Supermarkets Ltd v Hitt | [2002] EWCA Civ 1588; [2003] IRLR 23; [2003] ICR 111 | Court of Appeal (England and Wales) | 18 October 2002