EAT (Unfair Dismissal : Reasonableness of Dismissal
Misconduct dismissal. Claimant found to have been unfairly dismissed. She was responsible for circumstances in which Respondent incurred substantial expenditure in respect of excessive amounts of consumables but had not kept any records of what she ordered, could not explain her authority for the excess expenditure, the expenditure was not supported by business usage, and the items to which it was said to relate had never been received into stock. Employment Tribunal found her dismissal to have been automatically unfair – step 2 of the statutory dismissal procedures had not been complied with (it was unclear but they may also have found that there was a failure to comply with step 1) , that there were procedural failings (although they did not find whether or not they were such as would, in any event, have rendered the dismissal unfair), that the Respondent had reasonable grounds for their belief in the Claimant’s misconduct but also that they had not carried out a reasonable investigation.
Tribunal found that Claimant did not cause significant financial damage because the respondent had a turnover in the region of two billion pounds but the level of negligence involved in the Claimant’s conduct was such that dismissal was a reasonable sanction.
On appeal –
Employment Tribunal’s Judgment: there were contradictions and patent errors in the Tribunal’s judgment.
Procedure: Employment Judge had, apparently without reference to the lay members, invited written responses to an issue relating to a part of a document that had not been put in evidence, almost seven months after the last day of the hearing. Judgment not issued until some eight months after the end of a nineteen day hearing (which had begun over a year before the date of issue). Flawed procedure.
Employer’s appeal upheld: there was no basis in the evidence for the Tribunal finding that there had been a failure to comply with either step 1 or step 2 of the statutory dismissal procedure. The findings did not support the conclusion that the Respondent had failed to carry out a reasonable investigation; if that was what the Tribunal had found, they had substituted their own view but the picture was confused. The judgment contained too many contradictions and patent errors for the EAT to have sufficient confidence in its findings to enable them to determine whether or not the Claimant’s dismissal was unfair. Case remitted to a freshly constituted Tribunal for a rehearing.
Lady Smith
[2011] UKEAT 0066 – 10 – 2306
Bailii
England and Wales
Employment
Updated: 31 October 2021; Ref: scu.444021