In Stuart v London City Airport the EAT overturned a tribunal’s decision that a dismissal for misconduct was fair. The allegation against Stuart, made by a shop assistant, was very serious , i.e. that he was attempting to steal goods from the duty free shop, by concealing them under his jacket. However, Stuart denied stealing the items, or concealing them, and believed he had never left the shop. But the employer only considered the evidence of the shop assistant, had not interviewed other witnesses who had interacted with Stuart at the time and had failed to review readily available CCTV footage. The additional evidence put forward by Stuart could have supported his case, but had not been explored. Therefore the investigation had been unreasonable, particularly where Stuart’s honesty was in question, and to say that the employer had reasonable grounds to believe he had been dishonest was perverse.

Comment: The well-known Burchell test applies in a suspected misconduct dismissal case, i.e. an employer must establish that it had reasonable grounds for believing the employee to be guilty of misconduct by carrying out as much investigation as was reasonable. Here the employer fell well short of the reasonable investigation test, particularly where, as the case of A v B [2003] IRLR 405 tells us, an investigation must include evidence that is likely prove somebody's innocence, particularly where a person’s honesty is in question.