Limits on Employers

In misconduct cases, a dismissal is fair if the employer believed the employee to be guilty of the misconduct; had reasonable grounds for that belief; and carried out a reasonable investigation. In Moncrieffe v London Underground Ltd, the Employment Appeal Tribunal (EAT) held that there is a limit to what can be expected of employers in terms of gathering evidence and interviewing witnesses in relation to the investigation. 

Basic facts 

A London Underground cleaner on the Metropolitan line tube train, Mr Disu, told a colleague, Mr Grant, that he found a wallet in the driver’s compartment of a train that had been “stabled” in siding 34 at Rickmansworth either late on 20 June 2014 or early on the morning of 21 June.  As he had been in the vicinity of the siding, Mr Grant asked Mr Moncrieffe if he had lost his wallet. He initially said no but then changed his mind and said it was his. 

However, another Metropolitan line train driver, Mr Simmonds, then reported the loss of his wallet to the Rickmansworth Duty Train Staff Manager very early on 21 June. The following day Mr Simmonds mentioned to Mr Disu that he had lost his wallet. The latter explained that he had found one but that he had given it to Mr Grant. 

Following an interview at which Mr Moncrieffe was unable to account for the series of events leading up to the point that he claimed the wallet, he was charged with  “knowingly and fraudulently claim[ing] that a wallet found on train no. 21076 stabled in 34 Road at Rickmansworth sidings was his property. …” 

Following a hearing on 25 November 2014, the panel concluded that he could not have boarded the train on siding 34 and could not therefore have left his wallet there. He was summarily dismissed.  He was subsequently tried for theft at the magistrates’ court and acquitted due to differences in the description of the wallet, as well as what was said to have been in it. Mr Moncrieffe then initiated an internal procedure known as a “director’s review”, carried out by Mr McNaught. He upheld the earlier decision that there had only ever been one wallet on the train which belonged to Mr Simmonds. 

Mr Moncrieffe lodged a tribunal claim for unfair dismissal. 

Tribunal decision 

The tribunal rejected his claim, saying that London Underground had reasonable grounds for believing that the wallet belonged to Mr Simmonds. There had been a reasonable investigation following a fair procedure and dismissal was a sanction within the reasonable band of responses. The dismissal was therefore fair. 

Mr Moncrieffe appealed on the basis that serious allegations with grave consequences for an employee required clear evidence before it was reasonable to find them guilty. In particular, London Underground had failed to interview a manager, Mr Harding; and failed to interview Mr Simmonds in depth. 

EAT decision 

The EAT agreed that it was incumbent on tribunals to look carefully at the investigation to ascertain whether it was reasonable. The test was the same, whether the person is a train driver or someone who is professionally qualified. However, despite the grave consequences for Mr Moncrieffe, it was not reasonable to expect Mr McNaught to ask Mr Simmonds further questions; nor was it reasonable to expect him to interview Mr Harding whose evidence could only place Mr Moncrieffe in the vicinity of the train. 

Whilst expressing sympathy for Mr Moncrieffe, a man with 14 years’ service and an unblemished record, the EAT rejected his appeal on the basis that there is a limit as to what can reasonably be expected of an employer when gathering evidence and interviewing witnesses.