Evidence, flaws, ‘notice’

25 October 2018

This article was featured in the October 2018 issue of the magazine.

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. 

...consider all available evidence prior to making a decision to dismiss


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. 

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 reminded to ensure they consider all available evidence prior to making a 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. 


Whittaker v Governing Body of Sutton Oak CoE Primary School

A recent case decided at ET has highlighted the importance of following a fair and reasonable procedure when dismissing an individual, even in cases where the employee has appeared to be in clear breach of rules regarding conduct. 

The case in question centred around the conduct of the employee who worked as a primary school teacher. The teacher had previously received a warning in 2002 relating to unprofessional conduct with a student. It was decided at the time that this was down to his inexperience as a recently qualified teacher and he was allowed to remain on staff, on the condition that he would not be alone with a pupil in the future. 


...‘notice’ could reasonably have referred to a transfer from one department to another


In the years that followed the teacher developed a strong reputation at the school as an educator; however, in 2015 he was discovered alone with a male pupil in a classroom by the head teacher as he was gifting the pupil some chocolate. The employee was suspended pending an investigation into allegations that he engaged in inappropriate conduct with children and knowingly breached management instructions.

The investigation into this matter was conducted by the head teacher and the investigation report included a conclusion that the behaviour could potentially ‘constitute the early stages of grooming’. Between November 2015 and May 2016 the employee was subjected to multiple disciplinary hearings conducted by the governing board of the school, during which the teacher admitted that he had failed disclose this one-to-one meeting with the school’s management. He did stress, however, that two teaching assistants were aware of the meeting and it was purely to address behavioural concerns with the pupil. Following the conclusion of the disciplinary process, the teacher was dismissed. 

The employee brought several claims to the ET, including unfair dismissal and direct discrimination on the grounds of sexual orientation. Although the ET accepted that the employee had knowingly behaved inappropriately they took issue with the disciplinary process conducted by the employer. They noted that the excessive number of disciplinary hearings had created an overly elongated suspension period which meant it was increasingly unlikely the employee would have been able to return to his role. Even though it was alleged internal reviews of the suspension had taken place, these did not involve the employee or his trade union representative. 

The ET also highlighted a number of issues with the investigation, specifically that too much weight had been given to the incident in 2002 considering the employee’s professional behaviour since then. They also criticised the head teacher’s involvement in the investigation as this person was the only witness to the alleged incident and, therefore, not impartial. 

Finally, the ET concluded that the employer had discriminated against the employee by assuming a link between the sexual orientation of the homosexual employee and the potential for him to participate in grooming the male child. They added that such a link would not have been assumed if the employee was heterosexual; therefore, this was less favourable treatment based on his sexual orientation. 

Ultimately the ET upheld Whittaker’s claim for unfair dismissal due to the numerous procedural flaws committed by the employer and direct discrimination. 

This decision highlights the need for all disciplinary processes to be conducted in an appropriate manner, working to guarantee unbiased decision-making wherever possible. A failure to do so can result in costly tribunal claims, especially where a decision to dismiss could be career-ending. 


East Kent Hospitals University NHS Foundation Trust v Levy

This case centred on whether an employer had a duty to ascertain the reason behind an employee’s ambiguous resignation letter and if a failure to do so was tantamount to unfair dismissal. 

The employee had worked in the employer’s records department for ten years before applying for a separate position within their radiology department. The company had an internal policy which required any employee who was moving to a new department to resign from their current role and reengage in the new position. 

After receiving a provisional offer for the radiology role, the employee was involved in an altercation with a colleague and submitted a resignation letter to her current manager stating she was resigning with notice. The manager accepted this resignation; however, a few days later the provisional offer from the radiology department was withdrawn due to the employee’s high absence levels. 

Though the employee asked to rescind her resignation, her manager did not agree to this after receiving advice that he was under no obligation to do so. Instead, the manager confirmed that her employment would end on the previously-stated date and the employee owed a large amount of overtaken holiday leave. 

The employee brought a claim of unfair dismissal to the ET which upheld her claim. The ET ruled that it was the employer that had ended Levy’s employment by dismissing her. As it was company policy to submit a resignation when moving departments, it would have been clear to the employer that this was the intention of the employee and she wasn’t terminating her employment completely. Whilst they accepted the employer’s argument that the wording used in the resignation letter was unclear, the ET ultimately ruled that a reasonable employer would have considered the context of the situation and understood the employee’s true intentions. 

The employer appealed this decision to the EAT arguing the ambiguous nature of the resignation letter and the employee’s clear use of the word ‘notice’. The appeal was unsuccessful because the EAT held that in the specific circumstances of this case, notably the employer’s internal policy for job transfers, the use of ‘notice’ could reasonably have referred to a transfer from one department to another. 

This case reminds employers that when faced with a resignation letter they may be required to clarify the employee’s intentions. If the wording of the letter is ambiguous then a follow up meeting can be held to discuss the letter and the next steps to be taken. Even if the employer would prefer the employee to leave the company for sound business reasons, they need to take care to avoid dismissing the individual without following a fair and reasonable procedure.