This case involved damage to a shutter on the premises of the respondent and the decision to make a deduction from the claimant’s wage to cover the costs. The claimant’s contract contained a specific provision permitting a deduction if the he acts in a negligent manner. The respondent instructed a Human Resources Consultant to investigate the matter.

There were material differences in the factual accounts of the claimant and two other employees who appeared to implicate the claimant and suggested he caused the damage arising from a ‘practical joke’. Written statements were taken from these employees. However, the investigation was concluded without affording the claimant a chance to comment and/or challenge the statements and the finding was that the claimant had acted negligently.

The case therefore narrowed down to whether the investigation’s conclusion that the claimant had acted negligently was justifiable. The tribunal held that it was a flawed investigation as the claimant was unable at any point prior to the tribunal hearing to challenge the evidence of witnesses upon whose evidence the finding of negligence was founded. The investigation, therefore, could not be relied upon and the decision to deduct from the claimant’s wages was unlawful.

Practical Lessons

The tribunal noted that the evidence of the employees who made statements did point towards negligence on the part of the claimant. However, the decision to find negligence without allowing the claimant to respond to their evidence was absolutely fatal to a fair investigation. Due process requires that a claimant can respond to allegations against him and it is immaterial that there appeared to be evidence implicating him.

An important point to note also is that the case hinged on the interpretation of what constituted ‘negligence’ and at no point did the Consultant consider the claimant’s conduct alongside any legal definition or even generally accepted criteria. The tribunal noted negligence is a ‘difficult and complex legal concept’ yet the investigation contained no indication as to how it was defined. Employers would be well advised to at least ensure any finding of ‘negligence’ is predicated on a clear definition which is perhaps noted in the Employee Handbook.