The scope of investigations

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The Problem

One of your employees has the job of going round his patch and assisting clients with their support needs. This means that the employee spends a substantial amount of time travelling and he submits his mileage claim forms via an on-line form. However, when you more carefully review the mileage claims you become suspicious that what is being claimed is excessive.

The Principle

This was essentially the situation in Shrestha v Genesis Housing Association Limited. Genesis employed Mr Shrestha as a floating support worker and his mileage expenses claims were assessed against AA Route Planner’s recommended mileage for the relevant journeys he was undertaking. The employee contended that he had to take longer journeys due to road works, one way systems and parking difficulties.

Before making the final decision the manager conducting the disciplinary hearing specifically analysed two journeys (having briefly reviewed others) which had been undertaken and in both cases the mileage claim form was far higher than the AA estimated mileage (and indeed the RAC’s). He did not look at all of the claims submitted. The manager concluded that the employee’s explanations were not plausible and he was dismissed for gross misconduct.

The Practice   

The Employment Tribunal and Employment Appeal Tribunal dismissed the appeals that Mr Shrestha had been unfairly dismissed. The Court of Appeal did so also. The Court of Appeal confirmed that an employer should undertake such investigation as is reasonable in the circumstances and that the ‘band of reasonable responses’ test applies as much to the investigation as to the reasonableness of the dismissal. In this case it was not considered necessary for the employer to ask Mr Shrestha to explain every journey and analyse the mileage incurred.

This is a helpful reminder to employers to take care with their investigations but also to be reminded of the fact that the extent of investigation need only be reasonable in the circumstances.

For further information, help or advice please contact Tim Davies on 0191 211 7927 or [email protected]