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Case law: Importance of reasonable investigation by employer before dismissal

Employers should ensure they carry out a reasonable investigation into possible alternative, exonerating explanations for apparent misconduct before deciding on dismissal or other disciplinary action.

Legal Alert

This update was published in Legal Alert - May 2016

Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.

Obscene material was found in the cloud storage account at work of a manager of 27 years' standing. He said he had no knowledge of the material but admitted that he shared his cloud password with others in his department and suggested someone else may have stored the material there while logged on under his password. Password sharing was against his employer's IT Code of Conduct, but he said it was common in his department (and across the organisation) as it was necessary for efficient working.

He was summarily dismissed both for the obscene material and for breaching the IT Code of Conduct.

During the disciplinary process, the disciplinary officer had decided that only the obscene material was serious enough to justify a summary dismissal. On its own, the breach of the IT Code would not have been enough. On appeal, the appeal officer confirmed the dismissal but gave his view that, given the manager's responsibilities and standing, both offences would justify summary dismissal on their own.

The employee claimed unfair dismissal. The Employment Tribunal (ET) said dismissal for the obscene material was unfair as there was not enough evidence the employee himself had stored it in his cloud storage account. It also said that there had not been a proper investigation into the possibility that someone else had used the employee's password. However, it ruled that the appeal officer had behaved reasonably when deciding that the password sharing could justify the dismissal, and his approach had cured any defect in the disciplinary officer's view.

The Employment Appeal Tribunal (EAT) ruled that the employer's investigation into whether password sharing was common, and could have provided an alternative, exonerating explanation of how the misconduct occurred, was inadequate. The investigation was not therefore reasonable.

The ET had also not considered whether the appeal officer's decision could 'cure' the disciplinary officer's view - this was an error of law. The EAT allowed the appeal and sent the matter back to the ET for reconsideration.

Operative date

  • Now

Recommendations

  • Employers should ensure they carry out a reasonable investigation into possible alternative, exonerating explanations for apparent misconduct before deciding on dismissal or other disciplinary action against an employee.

Case ref: Choksi v Royal Mail Group Ltd UKEAT/0280/15/LA

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