Employment Law Speed Read – 11/03/19

Facts

The Claimant commenced employment with the Respondent in July 2008 as a Bar Steward.

Following a stock take, that the Claimant was responsible for, 24 bottles of vodka and 2 bottles of brandy were found to be missing. Unable to explain the missing stock, the Claimant was given a final written warning. The Claimant appealed the final written warning, but in doing so accepted “part responsibility” for the shortage and offered to pay the Respondent back. Her appeal was unsuccessful and the warning was to remain on her record for 12 months.

A few months later, while the final written warning was live, the Claimant refused to sell tickets for an event due to her concerns of money going missing when she was responsible for the tickets. She was asked several times to sell the tickets but continued to refuse and so was suspended on full pay whilst an investigation was undertaken.

After the investigation it was decided that the Claimant should be dismissed. The Claimant brought a claim for unfair dismissal, challenging the earlier final written warning due to a lack of investigation by the Respondent.

Employment Tribunal (ET)

The ET found that the Claimant had been unfairly dismissed due to procedural failings. However, the Claimant’s compensatory award was reduced to nil on the basis of a “Polkey” assessment, that had a fair process been followed there was a 100% chance that she would have still been dismissed in any event (see Polkey v AE Dayton Services Ltd [1987] IRLR 503). The Tribunal considered that the failure of the Respondent to carry out an investigation into the missing stock issue was partly mitigated by the Claimant’s admission of responsibility for what happened.

Employment Appeal Tribunal (EAT)

On appeal, the Claimant argued the earlier final written warning was not valid and so the reduction to her compensation could not stand. The Claimant’s appeal was dismissed by the EAT who agreed with the ET’s finding that the dismissal was unfair and the reduction to compensation to nil was both competent and appropriate. The overriding issue for the EAT to consider was whether there was a prima facie ground for issuing the warning, not to re-open the issue of whether it should have been issued or not.

The EAT stated that it could not find that the earlier written warning could be treated as invalid as manifestly inappropriate – a serious issue of missing stock was identified, the Claimant could offer no explanation and took partial responsibility for it.

Comment

The decision is a reminder to employers to ensure that proper investigations are undertaken when taking disciplinary action – particularly where that disciplinary action leads to dismissal. However, the case is also a helpful reminder of the principles of Polkey reductions and that a Claimant’s contributory fault will be taken into consideration by a Tribunal.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.