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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Shrestha v Genesis Housing Association Ltd [2015] EWCA Civ 94 (18 February 2015) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2015/94.html Cite as: [2015] IRLR 399, [2015] EWCA Civ 94 |
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ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
His Honour Judge Peter Clark
(UKEATPA/0759/13/SM)
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE PATTEN
and
LORD JUSTICE VOS
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Rajendra Shrestha |
Appellant |
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- and - |
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Genesis Housing Association Limited |
Respondent |
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(Transcript of the Handed Down Judgment of
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Patrick Halliday (instructed by DMH Stallard LLP) for the Respondent
Hearing date : 5 February 2015
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Crown Copyright ©
Lord Justice Richards :
The facts
"34. Mr East accepted that he did not discuss every single trip with the Claimant but discussed only two individual ones. The Claimant again suggested parking issues or road works as reasons why he was over the recommended RAC or AA mileage. Mr East decided that he needed to investigate some of these issues and adjourned the hearing accordingly.
35. During the adjournment Mr East considered the difference between the RAC and AA mileage. His conclusion was that there was very little difference between the two and compared to either, the Claimant's return journey mileage exceeded the recommended mileage. Mr East also carried out an analysis of the claims submitted by the Claimant in June and July 2011 compared to the same journeys in November and December 2010 …. In all cases the later journeys claimed higher mileage than the earlier journeys and all journeys shown were greater than the AA figures. Mr East confirmed that no other investigation was carried out ….
…
37. In cross-examination Mr East was asked why he had not put each specific journey to the Claimant. His explanation was that as every single journey that the Claimant had made was above both the AA and/or RAC suggested mileage it was not plausible that there was a legitimate explanation for each and every journey. As to the Claimant's explanation about parking issues and road closures he was also asked in cross-examination why he had not sought to further investigate these, perhaps by carrying out some of the journeys in question. He explained that it was not possible to later recreate the same conditions so as to make the exercise a reasonable one. The circumstances on the day simply could not be replicated. He also stated he had personal experience of the accuracy of the AA figures.
38. Mr East's explanation was that one-way systems could not be a legitimate reason. The AA calculates their recommended mileage including one-way roads. As far as parking was concerned, given that the Claimant made the same journey several times he would over time get to know where to park and Mr East rejected the Claimant's explanation that parking could therefore account for increased mileage. His view was that nobody would park so far away from the client's house that it would be longer to walk from the parking place than to go directly from the Respondent's office premises. However, the journeys on which the Claimant was stating parking could have been an issue showed that he would in effect have been doing this. Mr East did accept that road closures could be an explanation in respect of some journeys, however, he did not consider it plausible for this to explain why every single journey was greater than the recommended mileage. He felt that the Claimant's explanation simply did not stack up …."
"42. … Mileage claims were higher than the AA figures because of traffic congestion road closures and parking. Mileage is higher in June and July compared with late 2010 because of road works and in relation to one address it was because he had to drive part of the way on a dual carriageway to get to the client's house …. "
The issues on the appeal to this court
Ground 1: reasonable investigation
"What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case" (emphasis added).
"The range of reasonable responses test (or, to put it another way, the need to apply the objective standards of the reasonable employer) applies as much to the question whether the investigation into the suspected misconduct was reasonable in all the circumstances as it does to the reasonableness of the decision to dismiss for the conduct reason."
"53. Mr Capek's second challenge is whether this [belief] could be genuinely and reasonably held based on the investigation that was carried out. In particular he criticises the failure by Mr East to create the Claimant's journeys. I conclude that it was reasonable for the Respondent not to do so. I have accepted the explanation given by both Mr East and Mr MacDonald that it would not in any event have been possible to do so and I cannot find it outside the reasonable range of responses of an employer to have taken no further steps than it did to validate the appropriate journey time.
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55. Again, it is submitted on behalf of the Claimant that Mr East and Mr MacDonald did not properly examine 5 points. I have already indicated that one of these points is not relevant to this Claimant's case. I found as a matter of fact that they did in fact … consider and reach a conclusion on all the other points. They therefore carried out a reasonable investigation and reached a genuine belief based on such a reasonable investigation.
56. I find that both Mr East and Mr MacDonald believed the Claimant had committed an act of dishonesty and it was reasonable for them to have reached this view on the investigation they carried out …."
Ground 3: wrongful dismissal
"57. The Claimant has also brought a claim for wrongful dismissal. I have found that he was properly dismissed for an offence of dishonesty which does amount to gross misconduct and therefore he is not entitled to any pay in lieu of notice."
Mr Barnett submitted that this was plainly wrong, because the finding that the appellant had been properly (i.e. fairly) dismissed did not mean that he was guilty of gross misconduct; a finding of gross misconduct would require in this context a finding of dishonesty, but no such finding was made.
"58. Mr Capek accepted that, if my findings were that the Claimant had been guilty of dishonesty then he would not be entitled either to the essential car user allowance or any monies for outstanding mileage for August, September or October. I have indeed made that finding and therefore make no award to the Claimant in respect of either."
Mr Barnett submitted that the statement "I have indeed made that finding" was wrong because no such finding had been made anywhere in the judgment. In my view, however, this was an express statement of what was already clearly implicit in the judgment; and if an express finding was needed, this was it, and it was amply supported by the previous findings.
Ground 4: other claims
Conclusion
Lord Justice Patten :
Lord Justice Vos :