EAT UNFAIR DISMISSAL
Reasonableness of dismissal
Contributory fault
PRACTICE AND PROCEDURE – Appellate jurisdiction/reasons/Burns-Barke
An employer dismissed a store manager (who had some 11 years’ experience) after an employee at the store committed thefts of a number of valuable mobile phones. She had failed to keep a proper stock control, to reconcile the computer systems accounting for sales and for agreements made with customers, and had allowed staff to sign off the agreements they had made with customers without being cross-checked by another staff member, and had not responded with increased vigilance after demonstrator phones went missing, she raised the matter with staff, and they mysteriously reappeared in a strange place. The dismissal was agreed to be for conduct, though described by the employer as for ‘gross incompetence’. The Employment Judge held that there had been no suggestion that the Claimant was herself dishonest, nor had there been any criticism of her work in the past; that the conduct for which she was dismissed did not feature in, nor was closely related to, the examples of gross misconduct specified in the employer’s disciplinary policy; that the employer had promulgated no policy on the way in which stock controls were to be exercised; and that the Claimant had had no warning that a failure of this sort could lead to dismissal. It held the dismissal outside the range of reasonable responses (though in its reasoning, had wrongly approached the matter as one in which there were no reasonable grounds for the employer’s belief, accepted as genuine, that the Claimant was guilty of gross misconduct as alleged). Despite some infelicities in the expression of its reasoning, the finding of the EJ that dismissal was unfair was held sufficiently clear, and was not perverse, nor reached by substitution of the EJ’s view for that of the employer.
However, the finding that there was no contributory fault could not stand. It was reached by assuming that the dismissal was in effect for capability, and wrongly that that meant there could be no contribution; that there had been no misconduct, though the EJ had earlier identified a final written warning as appropriate, thus expressing inconsistent views; and was insufficiently reasoned. Remitted to a fresh tribunal.
Langsatff P J
[2013] UKEAT 0605 – 12 – 1705
Bailii
England and Wales
Employment
Updated: 18 November 2021; Ref: scu.514170