UNFAIR DISMISSAL EMPLOYMENT TRIBUNAL
07 February 2011
In this case the claimant was dismissed for dishonesty, the respondent believing that she had obtained sick notes and claimed Statutory Sick Pay when in fact she was fit to work.
The ET found that the respondent had not followed the Statutory Disciplinary Procedures and therefore the dismissal was automatically unfair. The claimant’s compensatory award was reduced by 75% for contributory fault. The ET did not accept the respondent’s submissions that the claimant would still have been dismissed, even if the respondent had followed a fair procedure and therefore in circumstances where the dismissal was not automatically unfair within s98(A), the dismissal would be fair within s98(2)A. They concluded that had the respondent carried out further investigation by contacting the claimant’s GP, she would not have been dismissed.
The EAT looked at the disciplinary proceedings followed by the respondent as a whole, and said that although the claimant had not received a step 1 letter prior to the disciplinary meetings, the issues identified at the ET as being unfair were cured at the internal appeal hearing. The EAT agreed with the respondent that the ET erred in finding against the respondent that it was unfair not to have investigated further the GP; such enquiry would have been irrelevant. The ET appeared to have concluded, incorrectly, that a Polkey reduction was not available to them, because the dismissal was automatically unfair. Therefore the case was remitted to the same Tribunal to examine a possible Polkey reduction, in light of the curative effect and the lack of procedural unfairness in respect of the GP.