REWARD INSIGHT
Evidence, flaws, ‘notice’
Nicola Mullineux, senior employment specialist for Peninsula, reviews the decisions in three cases
Dibble v Falzon & Falzon t/a Anne Arms In this case, the employment appeal tribunal (EAT) were asked to determine if an employer’s decision to dismiss a member of staff could be considered reasonable, given the flaws in the investigation procedure. The case involved an employee who had worked as a waiter at the organisation since 2003. The employee had a clean disciplinary record prior to the new owners taking over management of the bar in 2015. On 28 March 2016 an incident occurred which caused the employers significant concern. When reviewing CCTV footage of the bar area that evening they witnessed footage of the employee taking coins from the cash register and placing them in her apron. A meeting was held on 7 April during which the employee was invited to explain her actions. During this meeting, the employee struggled to articulate herself and gave three inconsistent explanations for her actions. The employers told her to return home and re-think her actions, as well as informing her that she was facing an allegation of theft and dishonesty. The employer later invited the employee
to a disciplinary hearing which was to be held on 18 April. Again, during this meeting, the employee professed that she couldn’t remember why she had taken the money. The employer decided to dismiss the employee for gross misconduct due to theft, with the dismissal letter stating that the till had a £30 loss on the night of the incident. ...consider all available evidence prior to making a decision to dismiss The employee proceeded to bring a claim for unfair dismissal to the employment tribunal (ET). On reviewing the evidence, the ET found that the employer had genuinely believed that an act of misconduct had been committed due to the CCTV footage showing the incident and not containing footage of the money being handed to a colleague at completion of the shift. The ET was satisfied that the employer had conducted a reasonable investigation and dismissed the claim for unfair dismissal. This was later appealed to the EAT which
took a different view of proceedings. The EAT took several issues with how the original tribunal had approached the case, describing their reasoning as ‘seriously deficient’. They highlighted that the employer had been unable to clearly establish a reason for a dismissal that fell within the statute’s fair reasons for dismissal. Specifically, the EAT criticised the evidence used to justify dismissal as the employer relied on a £30 till deficiency; however, an electronic printout from the till showed it had an additional £5 on that date. The original tribunal was adjudged to have erred in not taking this evidence into account before making their decision. Given that the original ET failed to take this important piece of evidence into account during the original proceedings, the case was referred back down to another tribunal for further review. With this in mind, employers are decision to dismiss. If there is evidence that casts doubt on the events, as there was in this case, employers may find themselves facing claims of unfair dismissal if they cannot prove that they acted in a reasonable manner when dismissing an employee. reminded to ensure they consider all available evidence prior to making a
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| Professional in Payroll, Pensions and Reward | November 2018 | Issue 45
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