In Shrestha v Genesis Housing Association Ltd, (Court of Appeal) S, the employee was found to have been fairly dismissed for claiming almost twice the mileage recommended by the AA and RAC route-finders for the journeys he had been claiming. This case centred on the all-important matter of the quality of the disciplinary investigation, which S claimed was flawed.
As we preach to clients seemingly daily, a fair disciplinary dismissal can be overturned by a poor quality investigation and in this case S appealed on that basis to the Employment Appeal Tribunal and the Court of Appeal. The important thing about investigations, in fact all disciplinary paperwork is to assume that everything written down will be produced in court….in fact its safest to assume that everything said will be today, as employees are more often recording meetings now, and the courts don’t always reject covert recordings. When we work with clients on disciplinary/dismissal cases we try our best to create a flow of documents that shows the clients covering all bases, and being reasonable and considered throughout. It comes with practice.
The tribunals and courts need to consider whether the employer based its decision on a reasonable investigation, and S said that in this case this had not happened. In his defence S, who had claimed roughly double the mileage for work journeys against on-line route planner estimates, said that he had been forced to take longer routes due to roadworks, one-way systems and parking issues. The manager investigating the case looked at two similar journeys that had been conducted at two different times (a year apart). In both cases, the mileage claimed at the later date was far higher. Considering S’s pleas of difficulties with the route and parking etc. the manager concluded that S’s explanation was not likely to be true, that he had deliberately been over-claiming mileage expenses, that this constituted fraud, and so that he should be dismissed for gross misconduct.
S argued that the GHA Ltd should have properly investigated all of the difficulties he had put forward with all of the routes he had allegedly over-claimed, i.e. by carrying out a route by route analysis (i.e. of the possibility of the problems, not just the mileage) to establish whether his defence had merit in each case.
The Court of Appeal disagreed with S. It noted that as part of the investigation the employer must consider any defences claimed by the employee, but whether and to what extent it carries out specific investigations will depend on the circumstances. It noted that the central issue here was whether S had over-claimed mileage expenses, and that GHA Ltd had assessed his defences when considering whether or not he had, including comparing 2 journeys conducted at different points in time (conducted by S and another, with S claiming double the miles in each case.)
The Court concluded that the GHA Ltd had reasonably investigated the case, finding that the mileage claimed was almost twice that recommended by AA/RAC route planners; that the claims in 2011 had exceeded those for the same journey in 2010; and the disciplinary hearing had given consideration to all of the defences put forward by S. As for these defences, GHA Ltd had decided that they did not provide a plausible reason why every single journey had a higher mileage and the Court considered this a reasonable conclusion to draw.
S had suggested that GHA Ltd should have contacted the local council to confirm an increase in residents-only parking; and that it should have also contacted the Highways Agency in order to ascertain whether there had been roadworks and what road closures there had been. The Appeal Court noted that the earlier employment tribunal had considered whether it was realistic to try to recreate the journeys and had accepted that it was not reasonable for GHA Ltd to have undertaken that exercise. The Appeal Court, dismissing S’s appeal, agreed with the tribunal.
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