Did Genesis Housing Association have to investigate each and every line of defence put forward by their dismissed employee, Mr Shrestha, who they claimed had falsified his expenses?
Mr Shrestha was dismissed by Genesis because the mileage claims he was making were consistently double the distances given by the AA online.
During the disciplinary process, Mr Shrestha had put forward a number of explanations for the mileage discrepancies, ranging from one-ways to parking problems, and the presence of road-works and diversions. The decision maker at Genesis came to the conclusion that it was not necessary to look at each and every explanation put forward, because there was a problem with every journey and it simply wasn’t plausible that there was an explanation for them all.
Mr Shrestha claimed that Genesis had not complied with its legal obligation to conduct “a reasonable level of investigation, within the range of reasonable responses available to a reasonable employer” (the test set out in the case of Sainsburys -v- Hitt). He said that Genesis should have looked at each and every journey and that, for instance, they should have contacted the local authority in question to check the road-works and parking situations.
The Court of Appeal concluded that it would not have been reasonable for Genesis to recreate each and every journey, or to make suggested enquiries of the local authority, and rejected Mr Shrestha’s appeal.
This is another example of a case that should not have gone all the way to the Court of Appeal: it is clear that the position taken by the employee was unreasonable, not the employer’s.
We have also recently reported on the Rhijnsburger case dealing with a straightforward TUPE point in favour of the employee this time, but which went all the way to the Court of Appeal at considerable expense to the parties. The warning to employers and employees alike is clear – if you embark on litigation, it will not necessarily end at the Tribunal, even if you have a clear cut case.
There is further a lesson here for employees: if they wish to take detailed points, they should do so early on, and provide evidence. Here, the employee would have been well advised to have contacted the local authority himself.