The Court of Appeal in the case of Stuart v London City Airport [2103] has looked at what an employer needs to do to conduct a reasonable misconduct investigation. 

Mr Stuart was employed by London City Airport as a ground services agent, and went to the duty free shop at the airport to buy some items.  An employee who had been observing Mr Stuart decided that he was acting suspiciously and alleged that Mr Stuart had tried to conceal certain items under his coat. This was reported to the Store Manager. Whilst in the queue, Mr Stuart was called over by a colleague of his who was sat outside the shop - Mr Stuart left the queue and walked over to talk to his colleague, still holding the items. The Store Manager then called the police and Mr Stuart was promptly arrested. 

London City Airport conducted an investigation on the basis that Mr Stuart intended to steal goods. Mr Stuart denied this and his main defence was that he had thought that he never left the shop. The airport focussed its investigation quite heavily on whether or not he thought he was still in the shop. Indeed, it looked at the markings around the shop area and concluded that these were clearly highlighted. On this basis, it decided that Mr Stuart's main defence lacked any credibility and that he must have known that he had left the shop area. This, together with the evidence of two employees, was the extent of the airport's investigation and Mr Stuart was dismissed for gross misconduct on the grounds of dishonesty. His appeal also failed. Subsequently the police decided not prosecute him.  

Mr Stuart issued proceedings for unfair dismissal on the basis that the airport had failed to conduct a reasonable investigation. His claim relied on various grounds, namely the employer's failure to take into account his period of service without a disciplinary record, to interview other witnesses (such as his colleague) and to review CCTV footage, particularly on the allegation that he had been acting suspiciously and had attempted to conceal items.  The Tribunal did not agree with his claim on the basis that the employer had conducted a reasonable investigation, but subsequently the Employment Appeal Tribunal overturned this decision and held that Mr Stuart had been unfairly dismissed because his employer had not investigated what had happened within the store. 

At the Court of Appeal, it was decided that Mr Stuart had been fairly dismissed. It was decided that his main case was that he had thought that he did not leave area of the shop and the airport was entitled to focus its investigation on this aspect of his case. Following that investigation, the airport was entitled to form a view that his main defence simply could not be true. It was also reasonable for the airport to conclude that this totally undermined his credibility as well as his account of events within the store and to prefer the evidence of the two other employees.  It was also noted that during the course of his misconduct hearing, Mr Stuart had not put forward any evidence from his colleague or asked that the employer interview other witnesses or to review CCTV footage.   

This case highlights the lower threshold of what could be a reasonable investigation. As long as an employer has investigated the main aspect of a misconduct case and provided it is sufficiently clear from this that the employer can form a reasonable and honest view of the matter, in particular the employee's version of events, it can proceed to make a decision without having to conduct further lines of enquiry. 

The above said, we would advise on some caution. In this case the employer conducted the minimum level of investigation and still encountered problems when a claim was brought (at least at the Employment Appeal Tribunal stage). Cases such as this will always be a matter of judgement; employers would be wise to ensure that they have carried out a more thorough, though not exhaustive, investigation, in particular to pursue any obvious lines of enquiry.  This avoids giving the employee the argument that an unfair investigation has taken place and ensures that the employer has conducted its investigation beyond the minimum level required.  

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