The claimant was dismissed for gross misconduct after it was alleged that he made a malicious attempt to cause arson to the respondent’s property. In their investigatory meeting, the panel members discussed other non-related incidents which predated the alleged arson. As well as this, none of the witness interviewees were provided with a written version of what they had said and asked to confirm its accuracy and sign it. The respondent also chose to characterise the charge against the claimant as arson and its policy incorporated the criminal definition.

The tribunal stressed that in such circumstances, the duty to conduct a careful and conscientious investigation is particularly important. The respondent failed to do this, and in particular the decision not to interview the main witness in the case and probe their evidence was strongly criticised. The tribunal was not persuaded that the investigatory process was fair and held that the unfairness was both procedural and substantive. It was held that the claimant was unfairly dismissed.

Practical lessons

In such cases where wrongdoing amounts to a potential criminal offence, the allegations “must always be the subject of the most careful investigation” by the employer. This goes above and beyond merely affording right of representation and right of appeal and imposes a positive obligation to focus on evidence that may point towards the innocence of the employee.

Perhaps the most damning aspect of the investigation was the decision not to even hold an interview with the main witness upon whose evidence the proceedings against the claimant began. Employers must remember that in judging “reasonableness” the tribunal will look carefully at whether an employer appreciated what exactly is at risk for the employee e.g. loss of reputation, job and future prospects and if the disciplinary procedure adequately reflected this.