A Reasonable Employer

Theft from an employer is a very serious crime and should inevitably result in dismissal, but woe betide the employer who jumps to a hasty conclusion, points the finger and says, in the words of Sir Alan Sugar, “You’re fired” without first investigating the case thoroughly.

How thorough is thorough ? You may well ask. Should an employer exercise the skills of a special branch detective or merely ask a few questions and come to a conclusion which may seem obvious?

The answer is that the investigation should be as extensive or intensive as may seem reasonable in all the circumstances of the case. Would Sir Alan’s board room discussion count as being sufficient enough investigation for these purposes? I don’t think so!

Recently a case was bought by Carlsberg UK Ltd in the Employment Appeal Tribunal and heard by three judges, one was called Mr. Worthington. The case concerned a claim brought by Mr. Rabbitt who with his friend were sacked for allegedly stealing some kegs from their delivery van. There was even some discussion as to whether the missing barrels were Guinness or Stella!

The employer had done all that they could to investigate the loss. They interviewed the pub landlords who should have received the beer. They searched the base for some two and half hours, found nothing and then searched the lorries which the employees had driven.

An Employment Tribunal decided the investigation was inadequate, after all they didn’t even know whether it was Guinness or Stella that was missing, They should have investigated the base in better daylight and asked more questions of the landlord, especially at the disciplinary hearing. The dismissals were found to be unfair.

The tribunal had in fact identified the shortcomings in the investigation and decided how it should have been carried out in the way that they would have done it if they had been the employer and not necessarily in a way that is “reasonable in all the circumstances of the case”.

The Employment Appeal Tribunal did not agree with this approach and ordered the case should go to a new tribunal. They would listen to the facts all over again and base their decision on the right test of reasonableness which is not necessarily Scotland Yard perfection.

The importance of reasonableness carries through to the decision to dismiss an employee after the disciplinary hearing. Clearly it is unfair to dismiss an employee in a knee-jerk fashion as soon as dishonesty is suspected. The employer must carry out a thorough investigation and then make a reasonable decision based on the evidence. If there is no evidence he cannot base his decision on a hunch or a suspicion. The employee has a right to see all the evidence against him and defend himself in a fair hearing.

A reasonable employer and an honest employee is the best combination if you don’t want to end up in the employment tribunals where a few kegs of lager became very bitter indeed. 

For further information or advice, contact  Caroline Mitchell

Published 12/05/2008. The author of this article is Caroline Mitchell