Employment Law Advocates

As I have been discussing unfair dismissal, it is appropriate to flag up the case of Compass Group v Okoro, which appeared on the Employment Appeal Tribunal website today. It resolves a conflict in the literature between a line of cases which indicates that, when an act of gross misconduct has been admitted, no further investigation by the employer is necessary, and another which says that any mitigating circumstances should be considered and then investigated, even where there is no dispute between the parties that there has been a breach of a company rule.

The answer, according to Judge Richardson, is that there is “no bright line” dividing these two types of case. It is a matter for¬†a tribunal to determine whether¬†a case warrants any¬†further investigation by a reasonable employer or¬†whether¬†it does not, and its¬†conclusion cannot be overturned except on the grounds of perversity. He¬†also hints that the seriousness of the allegation is a factor to be weighed in the balance and that admissions of dishonesty (rather than merely appropriating property, as¬†in this case)¬†and violence are less likely¬†to require investigation.

There are parallels here with what I said in my last dark law post that procedural fairness is less important in the case of serious allegations although it should be emphasised that this is only true if the misconduct is admitted or if the evidence is otherwise strong. A failure to investigate is more than a technical breach of procedure and will usually be enough to make a dismissal unfair. If anything, investigation is even more vital for serious allegations.