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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Celebi v Scolarest Compass Group UK & Ireland Ltd [2010] UKEAT 0032_10_2807 (28 July 2010) URL: https://www.bailii.org/uk/cases/UKEAT/2010/0032_10_2807.html Cite as: [2010] UKEAT 32_10_2807, [2010] UKEAT 0032_10_2807 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE McMULLEN QC
MS J L P DRAKE CBE
MR I EZEKIEL
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR CHRIS QUINN (of Counsel) Instructed by: Simons Muirhead & Burton 8-9 Frith Street London W1D 3JB |
For the Respondent | MR DANIEL BARNETT (of Counsel) Instructed by: Gregsons Solicitors St Christopher's House Tabor grove Wimbledon London SW19 4EX |
SUMMARY
UNFAIR DISMISSAL – Reason for dismissal including substantial other reason
JURISDICTIONAL POINTS – 2002 Act and pre-action requirements
On remission of this unfair dismissal case, a second Tribunal found the reason for dismissal was loss of £3000 in cash. But the evidence from the manager who dismissed the Claimant was that she believed she had stolen it. This dishonesty was never put to the Claimant and the finding of fair dismissal was set aside, applying Strouthos v LUL.
Since the Step 1 letter did not mention theft, it did not comply with the 2002 Act regime.
At the parties' invitation the EAT found the reason for dismissal was theft and it was unfair for the above reasons. Remitted to the same Employment Tribunal to decide remedy ie Polkey and contribution.
HIS HONOUR JUDGE McMULLEN QC
Introduction
The issues
The legislation
"(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—
(a) the reason (or, if more than one, the principal reason) for the dismissal, and.
(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.
(2) A reason falls within this subsection if it—
(b) relates to the conduct of the employee.
(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—
(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and.
(b) shall be determined in accordance with equity and the substantial merits of the case."
"1 (1) The employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.
(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter."
"(1) The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.
(2) The meeting must not take place unless—
(a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and.
(b) the employee has had a reasonable opportunity to consider his response to that information."
The facts
"Following consideration of alternatives to suspension, we have concluded that this is the most appropriate action at this time, subject to on-going reviews. It does not mean that you have been, or will be found guilty of any particular offence or act of misconduct."
"Having considered the matter fully I can confirm you are required to attend a disciplinary hearing for the following reasons:
Incorrect reporting of stock figures
Following of financial procedures
Discrepancies in banking."
She was told this could lead to her dismissal and the meeting was to allow her to put forward her version of events and supporting information.
"I would thereafter see no reason why I would unable to attend the hearing as the whole matter itself is very distressing as basically it appears that I am being accused of theft of £3000."
"33. Following the hearing Ms Smith decided to dismiss the Claimant. The crucial issue was the loss of the £3,000. It was her view that either the money was stolen or it was never in the bag (because it had been taken over the period before). She considered if it had been stolen and concluded that it could not have been taken by Securitas or the bank as the seal was unbroken when it arrived at the bank and it had been opened by the bank in front of another employee. If it had been stolen it had been taken by the Claimant. However, she concluded that the money was never in the bag and had been taken by the Claimant previously. The Claimant had written the banking slip, put the money in the bag and handed the bag over. Ms Haynes had not seen any money being put into the bag in breach of procedures. Ms Smith gave evidence that she considered it was highly improbable that such a high % of the takings from a student population could have been in £20 notes. She did not accept the Claimant's account that the missing paperwork had been at the site when she was suspended. As for the discrepancies in stock, she considered that even if the Claimant had not entered the figures for the three disputed weeks she had not denied that she had entered the wrong figures on two of the weekly trading summaries.
34. Despite the deficiencies in the letter of dismissal (see below), which might go to credibility, we are satisfied that Ms Smith properly considered all relevant issues in deciding to dismiss the Claimant. We would add that the documentation in this case has fallen well below the standards that we would expect of a good employer. (The notes of the hearings are brief to the point of minimal and the correspondence relies too much on pro forma and is insufficiently tailored to the individual case.)"
"51. We are satisfied that the reason for dismissal was the Respondent's genuine belief that the Claimant had been guilty of misconduct, specifically that the Claimant was responsible for the loss of £3,000."
It then considered section 98(4), fairness, and said this:
"53. Turning to section 98(4) we considered whether the Respondent had arrived at its belief in the Claimant's misconduct on reasonable grounds and after reasonable investigation. If the only charge against the Claimant had been that the stock had been incorrectly inputted into the computer, then we would have found that the dismissal was unfair. Ms Smith failed to carry out sufficient investigation into who closed the books on those dates. The Claimant had said one thing and Mr Gaston had said another. It was open to the Respondent to do significantly more to establish if the Claimant had come in during sickness or holiday to close the books. It should have been possible to check with IT and who had logged on to the system or to press Mr Gaston for fuller information.
54. However the primary charge against the Claimant was that £3,000 had gone missing. Given the evidence from the bank, the Claimant's own evidence that she had been in control of the money until the time it was handed over to Securitas, and Ms Haynes evidence that she did not see the money before it was put into the bag it seems to us that there were sufficient grounds to dismiss the Claimant. The checks about stock figures were undertaken to see if there could be another explanation. They did not provide that explanation."
"57. It was not unreasonable not to tell her that she was being investigated for theft. The charge was 'missing banking'. If there had been a good explanation then it was clearly better not to have charged the Claimant with theft. In any event the Claimant understood the seriousness of the charge as set out in her letter of 16th January."
There was then a reflection under section 98A(2), the Tribunal held that the step 1 letter complied with the statutory regime. The Respondent showed on the balance of probabilities that given the fact of the missing cash, in respect of which no explanation had been presented, the Claimant would have been dismissed if a fuller appeal had been allowed.
The Claimant's case
"I formed the reasonable belief that the Claimant had stolen the £3,000."
The Respondent's case
The legal principles
"12. It is a basic proposition, whether in criminal or disciplinary proceedings, that the charge against the defendant or the employee facing dismissal should be precisely framed...
38. However, it does appear to me to be basic to legal procedures, whether criminal or disciplinary, that a defendant or employee should be found guilty, if he is found guilty at all, only of a charge which is put to him. What has been considered in the cases is the general approach required in proceedings such as these. It is to be emphasised that it is wished to keep proceedings as informal as possible, but that does not, in my judgment, destroy the basic proposition that a defendant should only be found guilty of the offence with which he has been charged.
39. Counsel referred to Spink v Express Foods Limited [1990] IRLR 320, the Employment Appeal Tribunal (Wood J (President) presiding) said:
"It is a fundamental part of a fair disciplinary procedure that an employee know the case against him. Fairness requires that someone accused should know the case to be met; should hear or be told the important parts of the evidence in support of that case; should have an opportunity to criticise or dispute that evidence and to adduce his own evidence and argue his case."
40. In Fuller v Lloyds Bank PLC [1991] IRLR 336, the Employment Appeal Tribunal (Knox J presiding) made a statement to a similar effect. In Bentley Engineering Company Limited v Mistry [1978] IRLR 436 (Slynn J presiding), it was stated that 'there is no particular form of procedure that is to be followed. In any and every case, it is all a question of degree'."
"38. We agree with Mr Barnett that at step one the employee simply needs to be told that he is at risk of dismissal and why. In a conduct case this will be identifying the nature of the misconduct in issue, such as fighting, insubordination or dishonesty."
"22. … The purpose of these procedures is to ensure that there is a proper and fair opportunity for the parties to seek to address any disciplinary issues and other matters which may lead to dismissal prior to the matter ending up in litigation before the Employment Tribunal. It is not to create unnecessary technical hurdles for either employer or employee. It will frequently happen in the course of a disciplinary hearing that the evidence emerging will identify potentially disciplinary conduct which, although closely related to the original alleged misconduct, is a variation of it. That, it seems to us, is precisely the position here. There is very little difference between the original complaint, which was unauthorised absence, and misuse of company time which stemmed from the Appellant sitting in his car and not effectively carrying out work for the benefit of the company. In both cases, the essence of the complaint is that no work is being done for the company. Whether that is because the employee is at home or sitting in his car is of no real materiality, so it seems to us. Shifts in the focus of the case will not lead to an obligation for the employer to write fresh missives on each occasion. Of course, there will be cases where the employer wishes to deal with a quite distinct act of misconduct which has emerged at some stage as a result of the disciplinary or investigative process for earlier alleged acts of misconduct. In those circumstances, it would be necessary to comply with the procedures, so that the employee knows in advance precisely what case he has to meet, to send a fresh statement in writing.
23. Mr O'Dair suggests that in this case the employee was not able to consider in advance how he should respond to the case of misuse of company time. We think that is, with respect, fanciful. He had the witness statements and he knew that what was under consideration was his behaviour during the course of the two days, 10 and 11 October. When he indicated, in respect of another matter that was raised with respect to his conduct on 1 October, that he had not had a proper opportunity to deal with that, the employers did not pursue it further."
Discussion and conclusions
Disposal