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Employment Law

Legal guidance - compliance - software

02 MAR 2015

What is a fair and reasonable misconduct investigation when the employee puts forward numerous defences?

What is a fair and reasonable misconduct investigation when the employee puts forward numerous defences?
Charlotte Williams
Solicitor, Veale Wasbrough Vizards

A recent Court of Appeal (CoA) decision looked at the steps an employer should take when conducting a misconduct investigation: the case involved an allegation of excessive mileage claims.

In Shrestha v Genesis Housing Association Ltd, Mr Shrestha worked for Genesis Housing Association Ltd (Genesis) as a floating support worker, meaning he frequently travelled to see clients in their homes. He claimed expenses for the miles travelled by submitting an online form. When Genesis undertook an audit, it was revealed that Mr Shrestha's expenses were well in excess of the AA's recommended mileage for the journeys. Genesis conducted a disciplinary hearing at which Mr Shrestha argued that he had taken longer to travel on certain routes due to road works, one-way systems and parking difficulties.

The disciplinary hearing was adjourned for Genesis to consider Mr Shrestha's explanation and carry out an analysis of the expenses claimed by Mr Shrestha for journeys undertaken in 2010 and 2011.

At the disciplinary hearing Mr Shrestha was questioned regarding two of the journeys that he had undertaken. Genesis did not consider it necessary to go through each and every journey with Mr Shrestha at the disciplinary hearing because it concluded that every journey was above the mileage suggested by both the AA and the RAC.

Having considered Mr Shrestha's explanations in relation to the journeys that he was questioned upon, Genesis were not satisfied and he was summarily dismissed for gross misconduct. Mr Shrestha subsequently pursued an unfair dismissal claim.

The Employment Tribunal (ET) and Employment Appeal Tribunal (EAT) dismissed Mr Shrestha's claim on the basis that Genesis had undertaken a reasonable investigation and that the dismissal for gross misconduct was within a range of reasonable responses. Mr Shrestha appealed to the CoA, arguing that in order to carry out a reasonable investigation into the allegations, his employer should have investigated each line of defence, unless it was manifestly false or unarguable.


The CoA dismissed Mr Shrestha's appeal, holding that Genesis had carried fair and reasonable investigation in the circumstances. The CoA held that, rather than require an employer to investigate each and every line of defence offered, the investigation should be looked at as a whole when assessing the question of reasonableness. As part of the process of investigation, an employer will need to consider any defences advanced by the employee, but whether and to what extent it is necessary to carry out specific inquiry into each of them, will depend on the circumstances as a whole.

The CoA also commented that, where multiple investigations into conduct have taken place (such as an investigation into the initial allegation and an investigation into an employee's defence), both investigations should be considered as a whole.

Best practice

Employers are reminded of the need to carry out a reasonable investigation into alleged misconduct of an employee, particularly where the outcome of the investigation is likely to be gross misconduct leading to dismissal. The CoA's decision confirms that an employer only has to carry out a reasonable investigation and, in practice, this means that it does not have to take every possible step available in order to investigate all of the explanations that the employee puts forward in their defence.
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