What is a reasonable investigation?

Shrestha v Genesis Housing Association Ltd [COA] | 2015

Mr Shrestha was a floating support worker for Genesis Housing Association Limited.

He used his own car to travel to clients at their homes and claimed mileage expenses via an online form, recording the start and finish mileage per journey.

An audit for a three-month period showed unusually high mileage. The mileage claimed was consistently around twice the distance for the same journey using AA route-finder.

A disciplinary procedure commenced and an investigation was carried out. The investigation including a comparison of the mileage claimed by Mr Shrestha for the same journeys the previous year. The claims had risen significantly. The investigation also included a comparison with the RAC website, which produced similar distances to the AA.

During a disciplinary hearing Mr Shrestha gave a number of explanations:

• difficulty in parking,
• one-way road systems, and
• road works causing closures or diversions.

He was questioned about two journeys in particular but not all of them. The disciplinary chair decided this was not necessary as each and every journey was more than AA and RAC suggested it should be and it was not plausible that there was a legitimate explanation for each and every journey.

In relation to the explanations the disciplinary chair concluded that:

• as Mr Shrestha made the same journeys he would know the best places to park and in some instances the mileage distances claimed meant that he would have parked further away than if he had walked directly from the office.
• AA route-finder takes into account one-way roads.
• while road closures would cause increased mileage it would not explain why each and every journey was higher than it should be.

Mr Shrestha was summarily dismissed for gross misconduct. He appealed but his appeal was unsuccessful.

Both the ET and EAT considered Genesis had carried out a reasonable investigation and had a reasonable belief that Mr Shrestha had claimed for mileage he had not driven. It was not necessary to:

• question Mr Shrestha about each journey.
• recreate each journey as the circumstances on the day could not be replicated.

The Court of Appeal agreed.

“To say that each line of defence must be investigated unless it is manifestly false or unarguable is to adopt too narrow an approach and to add an unwarranted gloss to the Burchell test. The investigation should be looked at as a whole when assessing the question of reasonableness”.

It also considered that it was not necessary for Genesis to:

• telephone the local authority to see if any new residents’ parking had been installed
• ask Mr Shrestha where he parked on each journey
• check the position on the ground themselves
• telephone the local authority to establish what road works and road closures there had been.

The Court of Appeal accepted that there had been consideration of what Genesis had done to investigate and what it had not done and why the investigation was reasonable as a whole.

This case does not change anything but it does reiterate that every aspect of an employee’s defence does not need to be investigated to the enth degree. The important question is whether the investigation and basis of the decision is reasonable.

Genesis should also have put the assumptions it made to Mr Shrestha. For example, do you accept that if there was a road closure on journey X this does not automatically explain the increase in journey Y?

Mr Shrestha may have been better placed if he had done the investigations he says Genesis should have done and presented evidence of ‘new’ residents’ parking and road works etc.