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Is Unfair Dismissal on the Horizon?

With the public inquiry into the implementation and failings of the Horizon IT system at the Post Office ongoing, Mr Bates vs The Post Office was compelling viewing.  

Although the affected subpostmasters and subpostmistresses were self-employed, their ordeal raises questions which apply equally to the fair and reasonable investigation into alleged misconduct by an employee, particularly where technology plays a part. 

Reasonable belief

As an employer, you must have a reasonable belief of misconduct following a reasonable investigation. For a dismissal to be fair, you must believe your employee is guilty of misconduct; you have reasonable grounds for that belief, and you have carried out as much investigation as was reasonable to form that belief.

Reasonable investigation

The degree of investigation required will depend on the circumstances of the alleged misconduct. The Court of Appeal has held that it is not necessary for an employer to extensively investigate every line of defence advanced by an employee. What is important is the reasonableness of the investigation as a whole, considering the strengths of the case, the seriousness of the allegations and the potential impact on the employer’s future. Where there are disputed allegations of criminality, your investigation should be meticulous: the potential implications could impact their reputation, job and future employment. 

When the computer says ‘no’

Consider ‘Amy’, who has worked for you for almost eight years, selling mobile phones and plans. You pay her a basic salary plus a commission for bolt-ons. Amy has long service and a clear record. 

Her figures for the last quarter show she has hit her targets and is entitled to 100% of her potential commission. Amy’s usual commission is 57%. You listen to some of her calls and review the order sheets. Amy has added bolt-ons to orders which were not agreed upon.  

You suspend her and arrange an initial investigation meeting. Amy seems shocked when you show her the sales report, denies adding the bolt-ons and claims there must be an issue with the new software you introduced four months ago.  

You asked the software provider to look into this, and they confirmed there was no issue; the only way a bolt-on could be added was if Amy had added them. 

After your investigation and a disciplinary hearing, allegations of fraud and theft against Amy are upheld. You dismiss her for gross misconduct. 

Unfair dismissal

If Amy were to issue a claim for unfair dismissal, she would have a reasonable prospect of success. 

In your investigation, you should have considered the anomalies. Could someone else have used Amy’s login maliciously or otherwise?

A tribunal will expect you to have looked into the potential technology issues in more detail. Relying on the assurance of your software provider will not be sufficient. You’d need to be satisfied that the evidence is sufficiently thorough and understandable. 

If not, have an independent third party to investigate.

Comment

Technology-related misconduct investigations will become increasingly common with the increasing use of artificial intelligence in the workplace. Consider how best to approach these and your arrangement with third-party technology providers. 

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