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Where an employee admits misconduct, what subsequent standard of investigation is required by the employer? This issue was recently revisited by the Employment Appeals Tribunal in a claim for unfair dismissal [1].

The details

Mr Wiltshire was employed by Cro Ports as a supervisor. He had 22 years unblemished service when he was dismissed for gross misconduct. The incident he was dismissed for concerned a shipping container, which fell 20 feet from the crane that he was supervising. The accident was a serious breach of health and safety procedures. The container was badly damaged, and the fall could clearly have killed anyone standing below.

It became clear that Mr Wiltshire had sanctioned a practice known as ‘packing’ on the damaged container. Sometimes, where locking pins didn’t engage perfectly with containers, those locking pins would be ‘packed’ with a piece of wood or rubber. This work-around fooled the safety mechanism, allowing the load to be lifted.

Mr Wiltshire quickly made a number of additional admissions. As supervisor, he accepted full responsibility for what had happened. He also confessed that he had overseen similar measures in the past, knowing that they were in breach of health and safety procedures. In his defence, however, Mr Wiltshire said that ‘packing’ was a well-known practice on site and that it reflected the pressure he and his colleagues were under. Despite this, he was dismissed.

An Employment Tribunal initially found that Mr Wiltshire had been unfairly dismissed. It referred to the requirement, in unfair dismissal cases, to conduct a ‘reasonable investigation’ in all the circumstances. It was troubled by various aspects of the background which should (it said) have been looked into: the work pressures at the time, predictable silence from other employees (when asked about ‘packing’) and a lack of established procedures.

On appeal, the Employment Appeals Tribunal overturned this finding. It found that the employer had been held to too high a standard of investigation by the initial Tribunal. The situation had to be judged by what the employer knew at the time that it carried out its investigation, and not by evidence produced later before the Tribunal. In particular, where the misconduct in question was already admitted, the question was what other conflicts of evidence really needed to be resolved by the employer?

The case is a helpful reminder for employers that early admissions of guilt can significantly curtail the scope of a disciplinary investigation.

The case follows another recent case from the Court of Appeal [2] which emphasised the need to look at such investigations as a whole, when deciding if they had been fairly handled.

This post was edited by Clive Day. For more information, email blogs@gateleyuk.com.

[1] Wiltshire -v- Cro Ports London Ltd

[2] Shrestha -v-Genesis Housing


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This blog is intended only as a synopsis of certain recent developments. If any matter referred to in this blog is sought to be relied upon, further advice should be obtained.