Employment Tribunals

(Scotland)

 

Held in Glasgow on 3 and 4 November 2014

Judgment of the Employment Tribunal
Reasons
Findings in fact
The claimant’s grievance
Borrowing of items
Allegations against claimant by Ms Lucas
Suspension of claimant
Disciplinary investigation
Escalation of grievance
Investigatory meeting with claimant
Involvement of Mrs Lunney
Grievance response
Disciplinary action
Grievance appeal hearing
Disciplinary hearing and outcome
Corroboration of Ms Lucas’ evidence

Claimant’s evidence to police
Borrowing of items
Other evidence
Credibility of Mrs Lunney’s evidence
We consider the evidence which was before her
Conclusions otherwise on claimant’s credibility
Claimant’s allegation of a "witch-hunt”
Claimant’s knowledge of Mrs Lunney’s status
Outcome of disciplinary hearing
Findings of fact on remedy
Statement of law
Conclusions

Judgment of the Employment Tribunal

The unanimous Judgment of the Tribunal is that:-

1. The complaint of unfair dismissal is well founded and succeeds.

2. The respondent shall pay the claimant as compensation for unfair dismissal:-

(a) A basic award in the sum of Seven Thousand, Seven Hundred and Forty Pounds; (£7,740) and

(b) A compensatory award in the sum of Thirteen Thousand, Four Hundred and Seventy Pounds (£13,470).

(c) The respondent shall pay the claimant expenses in respect of the Hearing fee of £190.
 

This is a claim to which the Employment Protection (Recoupment of Jobseekers Allowance and Income Support) Regulations 1996 apply. The monetary award is £13,170 (Thirteen Thousand One Hundred and Seventy Pounds). The prescribed element is £13,170 (Thirteen Thousand One Hundred and Seventy Pounds). The period to which the prescribed element is attributable is 18 December 2013 to 15 January 2015 and the monetary award does not exceed the prescribed element.

The complaints of unauthorised deductions from wages and failure to provide pay statements are dismissed upon withdrawal by the claimant.

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Reasons

Issues, evidence and representation

The claimant was represented by Mr Booth, an Employment Adviser. The claimant gave evidence to the Tribunal. The respondent was represented by Mr Warnes, Employment Consultant from Peninsula Business Services. For the respondent, the Tribunal heard evidence from Mr Mark Ramsbottom of Peninsula Business Services (Investigating Consultant), and Mrs Mary Whitaker of Peninsula Business Services (Dismissing Consultant). Both parties presented their own bundle of documents.

At the commencement of the hearing Mr Booth withdrew the claims of unauthorised deductions from wages and failure to provide pay statements to the claimant, so the Tribunal did not have to determine these.

The Tribunal had before it a complaint of unfair dismissal, the respondent dismissing the claimant on the grounds that she had stolen items of furniture from the respondent.

It was the claimant’s position that she had been given permission by a member of the Board of Directors to borrow the items.

The claimant disputed the reason for dismissal, saying that the respondent had conducted a witch-hunt against her. The claimant alleged that the respondent did not have a reasonable belief following a reasonable investigation. The outcome was pre-determined. Mrs Whitaker of Peninsula Business Services who decided that the claimant should be dismissed was biased. The respondent had decided to terminate the claimant's employment because she had raised grievances against the respondent. No meaningful consideration was given to the evidence which she produced. Mrs Whitaker had relied on incorrect facts or deliberately misinterpreted the facts to facilitate the claimant’s dismissal to please the respondent as her client.

The claim was presented on 5 February 2014 and sisted pending the outcome of a report by the police to the Procurator Fiscal in respect of the respondent’s allegations of theft against the claimant. By letter dated 1 August 2014 the Procurator Fiscal informed the Tribunal that the case was closed, no action having been taken.

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Findings in fact

The claimant was employed by the respondent from 6 February 1996 to 18 December 2013. The claimant is experienced in childcare and had started employment as a sessional worker. She was appointed to the role of Manager in 2004 and was responsible for the day to day running of the service. She managed six other members of staff, including an Assistant Manager.

The respondent is a company limited by guarantee which provides an after school and holiday service in the Northern areas of Glasgow. It operates as a charity and relies on funding from external organisations and the goodwill of parents to operate efficiently. The children who attend are of primary school age. The directors are in the main parents.

Mr Warne for the respondent challenged the claimant on her evidence, asserting that the service did not operate during school holidays so she did not work for the respondent at those times. No evidence in chief was adduced from the respondents’ witnesses to support that. The Tribunal accepted the claimant’s evidence that it operated during school holidays as many of the parents’ work. Indeed the respondent describes itself in its notice of appearance as providing, “an after school and holiday service”.

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The claimant’s grievance

The claimant returned to work following a period of maternity leave in January 2013. She experienced difficulties following her return in her dealings with Mary Henderson, a director and treasurer of the respondent. This resulted in the claimant submitting a written complaint around 28 March 2013 against Ms Henderson. The difficulties she experienced were as follows:-

 

  • Mrs Henderson would go to the claimant’s assistant about matters she should have spoken to the claimant about.

 

  • Mrs Henderson mismanaged fees.

  • Mrs Henderson and the committee members failed to contact the claimant about her return to work after maternity leave.

  • Mrs Henderson’s attitude towards her had changed when she became pregnant - she became rude and abrupt in her manner towards the claimant (in contrast with her treatment of another member of staff whilst on maternity leave).

  • Mrs Henderson had taken over some of her duties.

The claimant asked for matters to be resolved saying that she was being victimised and would approach the care inspectorate and a lawyer about harassment if they were not resolved.

On 17 April 2013 the claimant submitted a further grievance about Mrs Henderson complaining that she would go over her head and make mistakes which the claimant might be held responsible for.

The board met on 25 April 2013. They decided they would recommend mediation. They decided the Assistant Manager, Alexandra Paul, should have carried out the return to work discussion and arrangements with the claimant. They decided to hold a final meeting individually with the claimant, Ms Paul, and Mrs Henderson to discuss whether there was away forward. It was noted that the next meeting would be held on 9 May 2013, and they would discuss the outcome and agree that the parties would try and work together to find a way forward.

All three ladies attended the Board meeting on 9 May 2013. The claimant continued to express concerns about Mrs Henderson with regard to fees, communications and failure to provide information. She complained about the same problems cropping up. They were both asked if they were prepared to work together and replied in the affirmative. The claimant said that she felt Ms Penders (director) had covered all of the grounds set out in her complaints and she was happy to move on.

Unfortunately, that was not the end of those issues. The treatment which she had complained about continued after the meeting and the situation continued to disintegrate.

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Borrowing of items

It was commonplace for directors, parents and staff to borrow items belonging to the respondent including furniture. The claimant would often give permission for this as the directors knew, and the directors would authorise borrowing and borrow items themselves. Ms Lucas (an assistant and partner of June Penders, a director) and Ms Paul (Assistant Manager) had borrowed tables and chairs one Christmas. Mrs Henderson had borrowed items. The children borrowed videos and games. The Head Teacher of Cadder Primary School had borrowed furniture. Ms Gangiel (an assistant) had borrowed a laminator.

 

Around the time of her grievance the claimant had a discussion with Mrs Catherine Lunney whom both believed to be a member of the Board at the time. Mrs Lunney was one of a number of Board members who did not regularly attend Board meetings (Ms Lunney complaining at a later date that she was not informed of them). The claimant in conversation explained that her nephews were coming to visit and she was concerned to find somewhere to store her baby daughter’s toys. Mrs Lunney suggested to her that she borrow an unused storage unit belonging to the respondent. This was for use by nursery age children and was not being used. She also suggested the claimant should borrow a small table and four chairs which again were not being used. The claimant did so. She engaged Ms Paul, Ms Lucas and her daughter Chelbey (also an employee) to assist her in loading the items into her car, taking them to her home and unloading them there one lunchtime. They all then went out for lunch together.

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Allegations against claimant by Ms Lucas

At some point during the summer of 2013 (probably mid-July) the claimant asked Ms Lucas twice to wear more decorous clothing (she had worn a skater skirt then “hot pants” which the claimant considered too revealing).

 

Ms Lucas complained to the respondent around two weeks later about the behaviour of the claimant about matters which were not before us, including those requests about her clothing. She also raised the removal of the items of furniture by the claimant. The respondent included in its bundle two statements from Ms Lucas, neither of which were dated or signed. Ms Lucas did not attend to give evidence. The respondent presented no evidence as to circumstances in which the statements were prepared or came to be in the respondent’s possession.

 

The first statement was said to have been written, “In regards to being asked about any problems or issues within the service.” There is a complaint about the claimant allocating time for college work to her daughter and other alleged irregularities.

 

Ms Lucas went on to observe that all staff had noticed things going missing. She stated that the claimant had asked her, Ms Paul and her daughter Chelbey to help her out to her car with a small table, four small chairs and a twelve-drawer unit. She stated that the claimant had told them that she was taking it home and if any other staff members asked where they had gone, they were to say that they had given them to the school.

 

In her second statement she asked to bring to the Board’s attention a complaint she had made against the claimant in November 2012 when the claimant allowed her daughter time off but refused Ms Lucas’s request to visit a nephew (they are related). Comments had been made every day in the week beginning 15 July about what she was wearing.

 

On 1 August 2013, a Board minute was prepared showing a discussion with Ms Lucas conducted by Ms Penders (Ms Lucas’ partner) as Investigating Officer. Curiously it was titled, “Board of Directors meeting with Alexandra Paul regarding missing equipment.”

 

Ms Lucas is noted as explaining that on the day when the claimant removed the furniture items the claimant said that she was taking the four small chairs, the small table and the storage unit as “this would do Madison [her daughter].” The claimant said if anyone asked about the equipment, she had given it to Mrs Crawford at Cadder Primary School. She confirmed that Ms Paul and the claimant’s daughter were present when this was said. They had taken the items to the claimant’s house and then all went for lunch.

 

Another document dated 1 August 2013 records an emergency meeting regarding complaints from Ms Lucas and Karen Gangiel (another assistant) to Ms Penders, Mrs Henderson and two other directors, Ms Harkness and Denise O’Neill. Ms O’Neill is noted as expressing the view that the claimant’s conduct in removing the furniture was “straightforward theft,” and if that happened within her business it would be a disciplinary or sackable offence as gross misconduct. It is curious that the statement from Ms Gangiel which is referred to is dated 2 August 2013, i.e. the day after the meeting. That statement is also unsigned. Ms Gangiel in her statement made another allegation with which we were not concerned (that a car which the claimant had sold to the respondent was not worth the price). She said that the claimant had taken some equipment bought for the nursery home saying it was not age appropriate for the After-School children and would be more suitable for her daughter. She said that the claimant had taken ”another set of wooden drawer units’ home for her daughter’s toys.” She had observed that the claimant had said she was going to give After School money for the drawers. She claimed that the claimant took food and household items for herself and put them through the weekly snack bill. All staff had witnessed this. She complained about an allowance apparently which the claimant received for petrol costs when she did not.

Ms Penders as Investigating Officer met with Ms Gangiel on 2 August, with Mrs Henderson as witness. She claimed that the claimant had told her to empty a storage unit as she was taking it home for her daughter’s stuff and had said that she would pay the respondent when taking the unit. She had not been present when the equipment went missing. She had noted lots of items missing. New items for the nursery had disappeared. She was aware that the Board of Directors gave permission for equipment to leave the premises, but the claimant had said previously that she was in charge and gave permission.

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Suspension of claimant

At an emergency meeting on 7 August 2013 the directors decided to call in the police. Ms Penders, Ms O’Neill and Ms Harkness met officers at the respondent’s premises.

Ms O’Neill called the claimant and asked her to come into the respondent’s premises (this being around 7.45pm) on the pretext of being introduced to Ms O’Neill as a new member of the Board. When she arrived the claimant was taken to meet the directors and police officers.

Ms O’Neill told the claimant that she was suspended on full pay over an allegation of theft. She was told to leave the premises and not contact anyone within the respondent organisation or discuss any matter about her suspension or the respondent. This included her daughter. The claimant enquired whether she could ask what had been stolen. The police and Ms O’Neill informed her that it was property. The police officers said they would explain matters to the claimant when the Board of Directors left the room. They then interviewed her alone.

The police officers showed the claimant three photographs of the items allegedly taken which they had obtained from the Board members. This included storage units, but not the storage unit or other items which the claimant had borrowed. She informed the police officers that she did not have the items in the photographs but had borrowed other items and offered to take them to her home to show them the items. The police accompanied her to her home and took the items away which Mrs Lunney had authorised her to borrow to return them to the respondent. The claimant was taken to the police station and charged with theft.

There is a note in the bundle which records that a police officer informed Ms Harkness after speaking to the claimant that the claimant had admitted the theft. The police had arrested her and taken her from the premises.

Before us the claimant denied admitting theft to the police officers. We found the claimant to be a truthful witness. The claimant has dyslexia, and on occasion required additional time to read and digest documents before her. She was candid in telling us when she had misunderstood or made an error. The claimant at all times before us, and in the disciplinary meeting, denied theft. The respondent did not call any witness to speak to this note. We accept the claimant’s evidence. It may be that the police informed Ms Harkness that the claimant had admitted taking the items (which she did) and Ms Harkness has misinterpreted this.

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Disciplinary investigation

The Board of Directors charged Peninsula Business Services (“Peninsula”) with conducting the disciplinary investigation.

On 28 August Ms Penders carried out an investigatory interview with Ms Paul, the Assistant Manager. She told of assisting the claimant with Ms Lucas and the claimant’s daughter to take the furniture items from the respondent’s premises to the claimant’s home. She said that this had occurred around six months previously. She stated that the claimant had not removed any other items at any time. She was not aware of permission being given or of the claimant having mentioned that she would return the equipment to the respondent. She knew nothing else about it. It is noteworthy that Ms Paul made no mention of the claimant saying that she would say that the items had been given to the school or its Headteacher.

Ms Paul also provided a written statement on 28 August 2013 which she signed. Again she made no mention of such a comment. She places the borrowing as occurring between May and June. She said that she had probably assumed the claimant had permission to take it.

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Escalation of grievance

On 4 September 2013 the claimant wrote to the Board stating that she wished to escalate the formal grievances she had submitted against Mrs Henderson in May. She had not received any correspondence from the Board about it and had no option but to take the matter further. In addition she had information about further fraud by Mrs Henderson and bullying by the Board. of Directors. She asked for a meeting with the Board.

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Investigatory meeting with claimant

The claimant’s investigatory meeting was postponed until 9 September. The four allegations to be discussed were:-

(a) allegations of theft of the respondent’s property (four small chairs, one small 3ft table and one multi-slot storage unit);

(b) fraudulent timesheets;

(c) harassment and bullying of staff;

(d) insubordination by failing to disregard instructions by the Board of Directors (sic).

Mr Ramsbottom of Peninsula conducted the disciplinary investigation meeting with the claimant. The claimant read a prepared statement. She explained that there was a police investigation. She was suspended on the assumption that she had taken three items of furniture from work. The police had escorted her to her home where after a thorough investigation they identified that the items (those set out in the photographs) were not on her property. She had alerted the police to the fact that she had borrowed three items from the respondent with the permission of a Board member. She had then returned those items to the police. She could not discuss that issue any further for legal reasons.

Mr Ramsbottom also discussed the other complaints with the claimant. Mr Ramsbottom did not speak to any other witnesses.

 

He then prepared a report. With regard to the complaint of theft, he described the claimant as being increasingly defensive when asked about the theft matter, and that she had refused to repeat her statement after she had read it to him. She had been allowed to ring her trade union representative for advice and had repeated the statement. He found her attitude to be defensive and her conduct at times uncooperative. The claimant had told him that she wished to bring to his attention that she had brought a grievance against Mrs Henderson of bullying and harassment. She felt that these allegations were being raised against her as a consequence for raising that complaint.

Mr Ramsbottom had clarified with the Board whether any member of the Board gave the claimant permission to remove the items of furniture and that was denied. On the balance of probabilities he reached the conclusion that there was sufficient evidence to commence disciplinary action against the claimant. He opined that the claimant ought to have obtained permission from an officer of the Board such as the Treasurer or Chairperson who had both confirmed that they did not give the claimant permission. He opined that if the claimant had obtained permission from another member of the Board she was negligent in not finding out whether that person had authority to either lend the items or give them to her. Any reasonable person would have done so. He found that the complaint should proceed to a formal disciplinary hearing.

He decided that there was sufficient evidence to support a complaint that the claimant had failed to return the company debit card to the Treasurer at the end of each week as she had been directed to do. He found that this was a failure to follow a reasonable management instruction which the claimant should have been aware of because she was at the Board meeting when the decision was taken. He recommended that this should be “the subject of further disciplinary meeting.”

He found that the other matters he was investigating should not proceed to a disciplinary hearing.

It would appear from the note that his enquiries and considerations did not include the statements which we have referred to above from Ms Lucas, Ms Paul and MsGangiel.

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Involvement of Mrs Lunney

The claimant informed Mrs Lunney about what had happened. Mrs Lunney tried to arrange a board meeting to explain that she had given permission without success.

The claimant informed the police that Mrs Lunney had given permission to her to take the items. The police asked the claimant to produce evidence of this. Mrs Lunney went to the police station and spoke to the police officers about this. She gave them a letter setting out her position, a copy of which she gave to the claimant.

In that letter she stated that she had given the claimant permission to borrow some items of furniture from the respondent. Had the other Board members approached her about it she would have informed them that she gave the claimant permission. She also explained that she had tried to arrange a meeting with the other Board members but to no avail. She asked that the officer dealing with the charge should contact her to resolve the matter. She signed off as a member of the Board of Directors.

The Tribunal noted a document in the bundle at Page 117 dated 17 September 2013 about this. It bears to have been written by Mrs Henderson. Amongst other things, it stated that Mrs Henderson had the police at her door on Saturday morning to say that the claimant, “had someone at the police station and they say that they had given the claimant permission to take the items. The police were saying that they found this hard to believe as it took several weeks after the charge for them to come forward. The person was Catherine Lunney who says she gave permission but Catherine Lunney has arrears with the service and was put off of (sic) the board as she hadn’t attended meetings and you must not miss any more than 3 meetings and if you have arrears you can’t be on the Board of Directors.”

The respondent did not refer to that document in its evidence, nor did it refer to what appears to be a note of a Board meeting on 19 September 2013. Ms Henderson, Ms Harkness and Ms Penders who were all directors were present as were Mrs Lunney and another parent, Kolleen Stewart. Mrs Lunney said she had asked for the meeting because she wanted to know why Ms Harkness had not been informing her about board meetings. She complained that she had not attended any meetings since December as she had not been told about them. She directly asked Mrs Henderson why she had not told her when she lived across the road from her. She also made a complaint to Ms Penders along these lines. Ms Penders complained that everybody forgot that they were a brand-new Board of Directors. She had joined in June 2013 and Ms Harkness had joined in July. She observed that two other Board members had arranged all the meetings and had informed them as parents at a time when Ms Henderson was treasurer.

It was implicit from her comments that she regarded herself as a board member who should be informed of meetings. She was not contradicted, according to the minute.

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Grievance response

Ms Harkness wrote to the claimant on 27 September 2013 about her grievance. She explained that the Board had met with the claimant outlining the steps they had taken in respect of the grievance and that it had been agreed that the two ladies would endeavour to get on with each other for the sake of the respondent and the claimant had agreed to this being the resolution. She stated that the Board thought that the matter had been resolved.

She did not deal with the claimant’s complaint of ongoing problems.

The claimant replied to say that her concerns had been brushed aside and that the issue was of bullying, failure to follow the Data Protection Act still remained, and for example the DPA was still not being followed. No action had been taken against Mrs Henderson and she had not been given any of the relevant paperwork. She asked for copies of signed paperwork supporting Ms Harkness’s conclusions. She was of the view that mediation had never been offered or taken place. She asked to escalate her grievance to the next level. She also asked when the additional points she had made on her grievance would be addressed as these were being swept under the carpet.

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Disciplinary action

In a letter dated 16 October 2013 the claimant was invited to a disciplinary hearing. The first letter was sent on 15 October 2013 and stated that the matters of concern were an allegation that the claimant had removed the four small chairs, one small 3ft table and one multi-slot storage unit without authority or reasonable excuse for her own use or the use of another. That if proven it would represent a gross breach of trust. There was a second allegation of failure to follow a reasonable management instruction, that being failing to return the company credit card to Mrs Henderson every week. The claimant was given copies of the documents which would be used at the hearing. There were three of these in this letter, those being the investigation meeting minutes of 9 September 2013, the Investigation Report of 12 September, and Board meeting minutes of 20 June 2013.

The same letter was sent to the claimant the next day enclosing an additional document, that being the Board meeting minutes of 16 May 2013.

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Grievance appeal hearing

The claimant’s letter about the grievance was treated as an appeal and the grievance appeal hearing took place on the morning of 18 November before Mrs Whitaker of Peninsula. The disciplinary hearing was postponed from its original date and was to take place before Mrs Whitaker in the afternoon.

The claimant was very nervous at the grievance appeal meeting in the morning, knowing that it was to be followed by the disciplinary hearing at which she faced dismissal. Mrs Whitaker learned that the claimant had not been provided with the minutes of the meeting of 9 May 2013 at which the respondent claimed her grievance had been dealt with. She provided the claimant with a copy of those.

The claimant and her trade union representative were allowed a short break to read these. The claimant is dyslexic. The claimant flatly denied that any attempt was made to resolve her grievance issues and to mediate between Mary Henderson and herself. The claimant denied being present at the meeting, and even that it took place.

She was thrown by the fact that the minute taker was noted as being June Penders when the claimant had never known her to take minutes. She had asked for documentary evidence before and nothing was produced, yet here she was presented with a minute when she knew one had not been issued at the time. When the hearing resumed, the claimant said that she recognised some of the matters noted in it but did not recall when that discussion had taken place. She denied that there had been mediation (and indeed there seems to have only been a proposal for such). She denied there had been a resolution because the treatment that she had complained about continued after the meeting and the situation continued to disintegrate as far as she was concerned. She had not been invited to a meeting whose purpose was expressed to be the resolution of her grievance. She believed she had simply attended a Board of Directors meeting as usual at which it was an issue which was discussed. When she had read over the minutes she could not remember some of the matters set out as having been discussed and could not recall at which board meeting her grievance had been discussed.

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Disciplinary hearing and outcome

The disciplinary hearing proceeded in the afternoon before Mrs Whitaker, who had before her the statements of Ms Lucas, Ms Paul and Ms Gangiel. The claimant presented the letter which Mrs Lunney had given to the police, and statements from Mrs Crawford, head teacher at Cadder School, Thomas Buchanan, former director and Chairperson of the Board, and Lilian Bendonis, a committee member.

Mrs Whitaker dismissed the first allegation against the claimant of failure to return the cheque book each Friday as directed. She was concerned because she had been presented with two differing sets of minutes for the board meeting at which the respondent had said the claimant was issued with this direction. One, which made no mention of a direction that the claimant should do so, had been presented by the claimant. The minuter was Ms Paul, the usual minuter, and it was signed. The second, which did contain such a direction, was not minuted by the usual minuter and was unsigned. Mrs Whitaker knew that the respondent’s management of meetings and minutes was not what it should be. She decided that she should not rely on the minute presented to her by the respondent directors for that reason.

She found against the claimant on the second allegation that the claimant had removed four small chairs, a small 3ft table and a multi-slot storage unit to the estimated value of £557 from the respondent premises with the intention of keeping them. Mrs Whitaker believed that the claimant had done so, and that in doing so had committed an act of theft. This was an act of gross misconduct. She decided that dismissal was the appropriate sanction.

Mrs Whitaker did not believe the claimant when she denied stealing the items in the hearing, saying that she had borrowed them with the permission of Ms Lunney, a director of the respondent. She did not find her evidence credible for reasons which we examine below.

We consider here whether Mrs Whitaker had a reasonable belief following a reasonable investigation. We remind ourselves that we must not substitute our view for that of the employer.

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Corroboration of Ms Lucas’ evidence

Mrs Whitaker accepted the written statement of Ms Lucas that the claimant had told her that the items “would do for Madison [her daughter];” and if anyone asked about them, the claimant had told Ms Lucas to say that they had been given to Mrs Crawford, Head of Cadder Primary School. This was important evidence for Mrs Whitaker. This was the complaint, and one which would demonstrate dishonesty on the part of the claimant.

Before us, Mrs Whitaker’s position was that she believed Ms Lucas because her evidence was corroborated by Ms Paul.

 

That the claimant had openly loaded these items into her vehicle with the assistance of Ms Paul, Ms Lucas and her daughter Chelbey was never in dispute. The notes of the disciplinary hearing however evidenced a misapprehension on the part of Mrs Whitaker that Ms Paul said that the claimant had told them that she intended to keep the items for her daughter Madison. Ms Paul made no such statement. Mrs Whitaker accepted that before us. She also accepted in her evidence that she had no corroboration from Ms Paul of the element of Ms Lucas’s statement which was most pejorative to the claimant, that is that if anyone asked she was to say the items had been given to the school. Her belief that there was such corroboration was on her own admission before us held in error and so is one which no reasonable employer would have held. The evidence she relied on did not support her conclusion.

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Claimant’s evidence to police

Mrs Whitaker discounted the claimant’s account that the police officers had shown her a photograph of three items which were somewhat unclear, describing this as “a fabrication” by the claimant. There appears to be some confusion around this altogether as Mrs Whitaker had been given a photograph by the respondent (which was not before us) which apparently showed items other than those which the police had recovered with the claimant's co-operation. Mrs Whitaker was somewhat confused. In reply to a question from the Tribunal (Mr Boyd) she said that the claimant said that she had borrowed three storage units. The claimant said no such thing. The claimant did say that the police had shown her a photo of three different types of unit, but not of the items she had borrowed. We have no explanation as to why the claimant’s comment was regarded as a fabrication and found otherwise Mrs Whitaker was confused; we do not find the belief to be reasonable.

Mrs Whitaker attached some weight to a conclusion she reached that the claimant must have admitted the offence of theft to the police. Mrs Whitaker believed the police would not have arrested the claimant had she not admitted theft (she said she had discussed this with her son who is a senior officer in the Metropolitan Police, and he told her this was so). That is not a reasonable belief. It is a matter within judicial knowledge that the police very often arrest individuals who have made no admission that they have committed the particular offences for which they are arrested.

That conclusion is also one which no reasonable employer would reach when she knew that the police had asked the claimant to produce evidence that she had permission from Mrs Lunney. If the claimant had admitted theft it is inherently improbable that they would ask her to produce evidence that she had permission to take the items.

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Borrowing of items

Much was made in examination in chief of the claimant saying to Mrs Whitaker that she did not need permission to borrow the items 4 as a Manager she was authorised in effect to permit herself to do it. Importance was placed on this because Mrs Whitaker said that this showed inconsistency in the claimant’s evidence. That is an error, the claimant did not say to Mrs Whitaker in the disciplinary hearing (or at all) that she did not need permission because as a Manager she could in effect “self-authorise” the taking of items. In that Mrs Whitaker’s belief was predicated on the claimant saying something which she did not, her belief was not reasonable.

The claimant presented evidence In the form of written statements from a number of people to support her contention that the borrowing of items including furniture was commonplace. She herself recounted Ms Lucas and Ms Paul borrowing tables and chairs at Christmas without Board permission, and that Mrs Henderson had borrowed items.

Mr Buchanan, a parent whose children attended the respondent’s organisation for a number of years, had been a director and chairperson of the respondent and had worked with the claimant and Mrs Henderson for a number of years. He stated that he found the claimant to be honest, reliable and trustworthy, a person who dedicated herself to the respondent services. He stated that it was a known fact that staff and parents could borrow items of furniture and such from the respondent. The children could also borrow videos and games with the authorisation of the Manager or Assistant Manager.

A Ms Bendonis who had been a committee member with the respondent (the respondent had been run by a committee before its incorporation) stated that the borrowing of Items of furniture was commonplace within the respondent. Her own children had borrowed and returned items. The Head of Cadder Primary School had borrowed furniture. Ms Lucas and Ms Paul had borrowed items of furniture over Christmas periods. Ms Gangiel had borrowed a laminator. All had been borrowed without prior consent from any Board member and all were duly returned. She felt that the claimant had been very unfairly treated in that regard.

The Head Teacher of Cadder Primary School provided a statement to say they had borrowed items such as paper and art and craft material, and the use of tables on short term loan for specific school activities.

Mrs Whitaker did not give any weight to these statements. She told us this was because the items borrowed were small. That is not a reasonable ground on which to disregard their evidence when they give accounts of borrowing of furniture, the very items borrowed by the claimant.

Mrs Whitaker had been informed that permission of the Board was needed if anyone was to borrow an item. The evidence of these witnesses indicated that this was not so, and in fact the claimant had often authorised the borrowing of items with the knowledge of directors or committee members. We conclude that Mrs Whitaker’s belief was not reasonable when she was mistaken in respect of these matters. Otherwise, Mrs Whitaker accepted that there was a culture of borrowing within the organisation.

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Other evidence

Mrs Whitaker found it odd that the claimant did not deny stealing the specific items, this was another matter which weighed against the claimant. We note that the claimant stated the following in terms in the disciplinary hearing. She said she had not stolen anything but had only borrowed things. At her house she had four chairs, a small table and a toy store unit which she had borrowed from the respondent. We note that those were the four items which were the focus of the disciplinary charge. A reasonable employer would not Interpret this as a failure to deny stealing the specific items which she had to account for in the disciplinary hearing.

We were somewhat baffled by the logic of Mrs Whitaker’s view on the credibility of another matter put forward by the claimant. The claimant asked in the disciplinary hearing why she would invite the police to her home if she had anything to hide, the implication being that she had nothing to hide. Mrs Whitaker reasoned that the claimant invited the police to her home so that she could ask that question in the disciplinary hearing to her advantage. Mrs Whitaker admitted that this was speculative. We find that her conclusion on credibility in that respect was not reasonable at all, and unreasonable when it was based on speculation.

Mrs Whitaker did not speak to any of the respondent’s or claimant’s witnesses as she believed that they would stand by their statements. No reasonable employer would fail to investigate further on that ground. There are often discrepancies and conflicts in evidence from disparate witnesses. A reasonable employer would not exclude further enquiry for that reason.

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Credibility of Mrs Lunney’s evidence

Mrs Whitaker decided that Mrs Lunney’s evidence (her letter to the police) was not credible as she had held herself out as a director in that letter when she was not. Had she believed Mrs Lunney she would have given some weight to what she said; if Mrs Lunney was a director she would have had authority to give the claimant permission to take the items, so she would not have concluded that the claimant had stolen them.

Mrs Whitaker spoke to members of the Board after the disciplinary hearing who informed her that Mrs Lunney had been a Board member “sometime ago,” and had been removed for getting into arrears with fees. She found on that basis that Mrs Lunney was not a Board member when the items were taken, or when she wrote the letter to the police.

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We consider the evidence which was before her

Mrs Whitaker knew that Mrs Lunney had written that letter because the police had asked the claimant for proof that she had permission to take the items. This was a lady who considered her evidence so important that she approached the police to offer this evidence on behalf of the claimant. It would be a criminal offence to give false information to the police. A reasonable employer would expect cogent evidence that she was not a member of the Board and knew this to be so when she wrote the letter.

Documentation evidencing her appointment and removal should have been readily available, together with evidence to show that Mrs Lunney knew of her removal when she gave permission and wrote the letter to the police. None was presented to her (or to us). This is especially so when Mrs Whitaker had found the board to be unreliable in record keeping and governance. Mrs Whitaker knew that the respondent was not well organised, and the Board minutes were not agreed or signed. They were not sent out. She told us that on a number of occasions there were two different versions of minutes of board meetings. She had given the respondent guidance because they did not follow good practice in respect of such matters. She had dismissed the first complaint because of such discrepancies. A reasonable employer would have investigated further. Her conclusion was not reasonable in light of the evidence before her. Separately there was evidence before the tribunal (which was available at the time of the disciplinary hearing) that Mrs Lunney made a point of arranging a meeting with the new Board members in September 2013 to complain to them about not being informed of meetings. The directors did not protest that Mrs Lunney was not a director. If she had been removed it could be expected that the directors would have been recorded as saying this to her in that meeting. A reasonable employer would have investigated further, and those instructing Mrs Whitaker should have drawn that document to her attention. Her conclusion was not reasonable in light of the evidence before her.

Mrs Whitaker did not consider or investigate Mrs Lunney’s statement that she had tried to speak to Board members about the complaint but they would not speak to her. A reasonable employer would have investigated that.

Mrs Whitaker made a finding that she was uncertain as to when permission to remove the items was said to have been given by Mrs Lunney. That is important when she had no evidence of the date of Mrs Lunney’s alleged removal as a director. A reasonable employer would have investigated that further in evaluating whether she had authority to give the claimant permission to borrow the items and sought further evidence about those dates. A reasonable employer in possession of those facts would not have drawn a conclusion adverse to the claimant on the simple statement that Mrs Lunney had been removed as a director “sometime ago.”

A reasonable employer would have considered making further enquiries of Mrs Lunney as to why she had held herself out to the police as being a Board member if she was not. Mrs Whitaker did not do so because she believed the witnesses would only stand by the statements she had before her. That is not a reasonable ground on which to do so.

Mrs Whitaker also said that she did not investigate any aspect further with Mrs Lunney as it might compromise the police investigation. There is no reason why Mrs Whitaker could not have contacted the police to ask if they had any objection to her meeting with Mrs Lunney. In any event we have no evidence why that would have been any more prejudicial to their investigation than the giving of evidence to Mrs Whitaker by the claimant or any other witness who was spoken to in the internal investigation. Her position is inconsistent.

Mrs Whitaker also told us that she did not attach weight to her statement as Mrs Lunney did not give the time and date or say what the particular items were. None of the other witnesses gave the time and date of the matters about which they gave evidence, yet they were not disregarded. Her position on that matter is inconsistent. It was unreasonable to disregard Mrs Lunney’s letter because she did not give the time and date. Whilst Mrs Lunney did not particularise the items, she did say that she had authorised the claimant to borrow some items of furniture from the respondent. The evidence from the claimant and the witnesses whose evidence weighed with Mrs Whitaker (Lucas and Paul) was that the only items removed were a small table and four chairs, and the storage unit. That rationale is one which no reasonable employer would have applied in those circumstances.

She regarded it as suspicious that it was some time before Mrs Lunney’s statement was presented to the respondent (that is, at the disciplinary hearing). It is not unusual at all for statements to be presented at a disciplinary hearing, and indeed a number of the documents which the respondent relied on were presented to the claimant during the disciplinary hearing. The disciplinary hearing is the employee’s opportunity to put forward her evidence. A reasonable employer would not draw an adverse conclusion from that.

 

We therefore conclude that Mrs Whitaker did not have a reasonable belief following a reasonable investigation that Mrs Lunney’s evidence was not credible.

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Conclusions otherwise on claimant’s credibility

Mrs Whitaker also drew conclusions on credibility from the claimant’s comments that morning in her grievance appeal hearing. Mrs Whitaker told us in her evidence in chief that she had already formed the view that the claimant had lied to her in the grievance appeal hearing that morning, which influenced her assessment of the claimant’s credibility in the disciplinary hearing. The claimant had flatly denied that any attempt was made to resolve her grievance issues and to mediate between Mary Henderson and herself. The claimant denied being present at the meeting and even that it took place. The minute presented at the grievance proved otherwise.

We find that a reasonable employer would have shared that with the claimant and allowed the claimant to state her case on that matter in the disciplinary hearing if it was something Mrs Whitaker was to take into account. The claimant would have been able to put forward the explanation offered to us. She was extremely stressed at the time and had had little time to consider the document before her. She suffers from dyslexia. She realised before us that the comment which she made to Mrs Whitaker (that she had not been at the meeting) had been made in error when she had had a proper opportunity to consider the document.

Further she had complained about the detrimental treatment continuing even after the 9 May meeting and so had cause to say her grievances had not been finally resolved. That was not considered at all by Mrs Whitaker.

Mrs Whitaker would also have known that the claimant had asked for copies of signed paperwork supporting Ms Harkness’s conclusion that the respondent had dealt with her grievance, but these had not been provided despite a written request for this before the grievance hearing. She had therefore been thrown when the minutes were presented to her in the grievance appeal meeting. She was also suspicious of their provenance when they had apparently been taken by someone who does not normally take minutes and had not been given to her even when she had asked for them.

Mrs Whitaker knew there were systemic problems with minute keeping, which might explain the claimant’s initial suspicion of a minute provided in these circumstances. Indeed Mrs Whitaker did not uphold the first complaint because of discrepancies in the minutes. We conclude that no reasonable employer would fail to share those concerns with the claimant in the disciplinary hearing if account was to be taken of it in determining whether the claimant was telling deliberate untruths and had stolen from the respondent.

That Mrs Whitaker had already formed the view that the claimant had lied about that matter to her in the grievance hearing suggests that she pre-judged the claimant’s credibility so did not come to the disciplinary hearing with an open mind. That is iniquitous. We conclude that Mrs Whitaker had not formed a reasonable belief following a reasonable investigation about the claimant’s credibility with regard to that matter.

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Claimant’s allegation of a "witch-hunt”

Mrs Whitaker did not consider at all whether it might be possible that the respondents were, as the claimant alleged, conducting a “witch-hunt” against the claimant because she had presented a grievance against Mrs Henderson. Mrs Whitaker told us that she had “tried to avert it” by concentrating on the issues before her in the disciplinary hearing and excluding anything else. She did so even though she found it strange that Ms Lucas waited several weeks before drawing the matter of the alleged theft to the attention of the Board in early August. We find that no reasonable employer would have failed to consider that as it formed part of the claimant’s defence, and she herself regarded the timing of Ms Lucas’ complaint as strange.

Mrs Whitaker also found that the claimant had lied to her, which was itself a breach of trust and confidence which amounted to gross misconduct. We have found that Mrs Whitaker did not have a reasonable belief in the guilt of the claimant and find that her belief that the claimant lied is not reasonable.

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Claimant’s knowledge of Mrs Lunney’s status

The respondent presented unsigned minutes of a Board meeting on 16 May 2013 which was put in cross examination to the claimant as a matter demonstrating the removal of Mrs Lunney as a director. We had no evidence from the respondent about this. It was not before Mrs Whitaker in the disciplinary hearing. This shows the following entry at “any other business”:-

“[The claimant] asked the BoD/Committee who was the BoD as the same faces were coming to the meetings and that a number of people weren’t interested when asked to come to meetings. [The claimant] said [Karen Whitty] is the chair, [June Penders] is the Vice Chair, [Mary Henderson] is the Treasurer and [Liz Carey] is the Secretary. [The claimant] said that [Catherine Lunney] was the Secretary and she hadn’t attended meetings. [Ms Henderson] explained there were arrears with [Catherine Lunney] and that any person with arrears wasn’t alouned (sic) to be on the BoD. All parents agreed that any members with arrears were to be taken off the Board due to arrears. [The claimant] said so [various directors] will be supporting the committee, everyone agreed. [June Penders] said committee members also support the BoD. [Ms Harkness] last saying she felt she didn’t have time for the meetings but would make time as she needs the service. [Ms Stobo] also agreed.”

In evidence the claimant was somewhat perplexed by the document and unsure as to what the record demonstrated. She was baffled as to why she would raise it. It was the claimant’s evidence, which we accept, that the meeting took place after she borrowed the items. She could not say why it would have been brought up. A lot of the Board members did not attend meetings. She would not have authority to question Mrs Lunney’s ability or authority to be a board member.

The Tribunal concluded that this does not amount to evidence that the board had taken the proper legal steps to remove Mrs Lunney as a director, or that the claimant believed or knew that she had been so removed. We accept the claimant’s evidence that she could not explain it and had no right to raise such matters. We would expect to hear direct evidence from the directors or Mrs Whitaker about that. It also did not amount to evidence that Mrs Lunney would know she was not a director any longer (there being no evidence that such a decision was properly taken, or communicated to her, or that this minute was sent to her). It does not go beyond a record of a discussion about directors who do not pay fees or attend board meetings.

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Outcome of disciplinary hearing

Mrs Whitaker sent her report to Mrs Henderson who informed her that she had tabled this with the Board, and they had decided to follow her recommendation that the claimant should be dismissed.

Mrs Whitaker wrote to the claimant on 12 December 2013 telling her of her decision that she was summarily dismissed, and the reasons for that decision. The claimant did not appeal the decision. She did not trust the respondent to give her a fair hearing.

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Findings of fact on remedy

The respondent submitted that the claimant had failed to mitigate her loss. The claimant was not challenged on her evidence on cross examination as to mitigation. The respondent itself offered no evidence, and the burden of proof rests upon them.

We find that the claimant took reasonable steps to mitigate her loss. The Tribunal found the claimant to be a truthful witness, and on this particular issue accepted the claimant’s evidence that she had taken immediate and reasonable steps to try and find other work. She was in receipt of Jobseeker’s Allowance, so was required to actively seek work and keep a log of her efforts to prove that she was doing so. The claimant applied for all sorts of jobs in December and January in childcare, driving and cleaning. She would search for and apply for jobs online and also visited the Job Centre to search their vacancies and to use their computers in her job search.

She was offered a job in childcare on 14 January 2014. As a consequence of disclosing that she had been dismissed by the respondent for theft her potential employer had to obtain sanction from the Care Inspectorate to engage the claimant. Accordingly she could not start work around 14 January when she accepted the position subject to approval. She eventually took up the post on 28 July once her appointment was approved. The claimant’s earnings from that post are £144 net per week.

She had continued to look for other work and was offered another position which she commenced on 22 April 2014. This was seasonal work. Her take home pay from this role averages £112 per week.

Her total take home pay is therefore £256 per week from both jobs.

The respondent accepted the figures put forward by the claimant in terms of her losses.

Her net weekly pay with the respondent was £346. Her immediate loss up to the date of this hearing is 45 weeks at £346 which equals £15,570. We deduct from that the claimant’s earnings in the period which are £3,030. That gives a figure for immediate loss of earnings of £12,540.

The claimant sought future loss for a period of 7 weeks and we accept her estimation of this as reasonable. We estimate the claimant’s on-going wage loss to be £90 per week (£346-£246), so find that future loss is £630.

We would normally award £300 for loss of statutory rights.

The total compensatory award would therefore be £13,470 before any deductions (contribution or Polkey).

It was agreed that the amount of the Basic Award was £7,740.

We considered whether the claimant caused or contributed to her dismissal. We found that there was no conduct on the part of the claimant which amounted to blameworthy conduct in terms of the legislation. We have found her to be a truthful witness and accept her account that she borrowed these items from the respondent with the permission of Mrs Lunney whom both believed to be a member of the Board of Directors (and we find that she probably was).

We find this on the balance of probability, the burden of proof resting on the respondent to establish that the claimant caused or contributed to her dismissal. We have heard no evidence from the respondent directly about the removal of the items of furniture.

Ms Paul did not in her written statement corroborate Ms Lucas’s written account of the claimant saying that she would say the items had been given to the school if asked. Ms Lucas was quite clear that this had been said in front of both of them and we would have expected Ms Paul to confirm that if it had been said. We accept the claimant’s evidence that she did not say that, and that she had permission to borrow the items from Mrs Lunney who as a director was able to authorise that.

We had no evidence that Mrs Lunney was removed as a director. The document presented as a minute of a board meeting which was put to the claimant was not persuasive. It does not show the respondent taking the steps required to remove a director of a company. It is inconclusive when the claimant cannot explain it and cannot explain why she would raise the matters set out when It was not within her gift to do so. There have been issues over the reliability of other such documents in this case. There is evidence that Mrs Lunney made a point of arranging a meeting with the new Board members in September to complain about not being informed of meetings. No mention was made in that minute of the respondent having removed Mrs Lunney as a member of the board, or even that she was not entitled to be informed of meetings.

We do not accept the respondent’s argument that there should be a Polkey reduction.

There is no evidence before us upon which we could find on balance (the burden of proof resting upon the respondent) that the respondent would have dismissed the claimant fairly in any event at some point in the future, or that there was a chance of this. No reasonable employer would conclude the claimant had committed the act complained of on the evidence we had before us.

The claimant paid a fee of £190 for the hearing of this claim. Her claim was well founded and she would not have incurred that fee were it not for her unfair dismissal. We exercise our discretion to award the full amount when she has not contributed to her dismissal in any way and otherwise there is no reason to reduce the sums awarded to her.

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Statement of law

It is for the employer to establish on the balance of probability the reason for dismissal, and that it is one of the potentially fair reasons provided for in Section 98 of the Employment Rights Act 1996 (“ERA”). Misconduct, the potentially fair reason posited in this case, is one such reason.

If that is established on the balance of probability we must then (and the burden of proof is a neutral one) consider whether the employer acted reasonably in treating that reason as a sufficient reason for dismissing the employee. We must take into account the respondent’s size and administrative resources, and the equity and substantial merits of the case.

We may reduce any compensation awarded if we conclude that the claimant caused or contributed to her dismissal.

In the case of conduct, in accordance with the authority of the EAT in British Home Stores v Burchell [1978] IRLR 379 EAT; a reasonable employer will have a belief in the guilt of the employee and reasonable grounds on which to sustain that belief. Further, he must have carried out as much investigation into the matter as was reasonable in the circumstances when he formed that belief. A reasonable employer will follow a fair procedure, and dismissal must be one in the range of reasonable responses open to an employer in response to such conduct

So far as reasonable belief is concerned, we remind ourselves of the Court of Appeal’s judgment in the case of W Weddel & Co Ltd v Tepper [1980] IRLR 96 CA in which Stephenson LJ stated:

 

“Employers suspecting an employee of misconduct justifying dismissal cannot justify their dismissal simply by stating an honest belief in his guilt. There must be reasonable grounds, and they must act reasonably in all the circumstances, having regard to equity and the substantial merits of the case. They do not have regard to equity in particular if they do not give him a fair opportunity of explaining before dismissing him. And they do not have regard to equity or the substantial merits of the case if they jump to conclusions which it would have been reasonable to postpone in all the circumstances until they had, per Burchell, '... carried out as much investigation into the matter as was reasonable in all the circumstances of the case.' That means that they must act reasonably in all the circumstances. if they form their belief or act hastily upon it, without making the appropriate inquiries or giving the employee a fair opportunity to explain himself, their belief is not based on reasonable grounds and they are not acting reasonably.”

In accordance with Sainsbury’s Supermarkets Ltd v Hitt [2003 IRLR23 CA, the range of reasonable responses test applies as much to the question of whether an investigation into suspected misconduct was reasonable in all the circumstances as it does to other procedural and substantive aspects of the decision to dismiss a person from his employment for a conduct reason.

In terms of remedy, we assess the basic award in accordance with S. 119 of ERA. We assess the compensatory award in accordance with S. 123, quantifying the loss attributable to the dismissal, and whether in all the circumstances it is reasonable to make the relevant award, awarding such compensation as is just and equitable.

In accordance with Polkey v AE Dayton Services [1987] IRLR 503 HL, we may reduce compensation by a percentage representing the chance that the employee would still have lost his employment if we consider that there is a doubt whether or not the employee would have been dismissed in any event had the respondent followed a fair procedure.

 

In respect of contribution, we conclude that the test which we should apply is whether it is more likely than not that the claimant caused or contributed to her dismissal, the burden of proof resting on the respondent.

In terms of 8.123 (4) of ERA, a claimant must take reasonable steps to mitigate her loss. The burden of proof rests with the respondent, who is expected to raise it and adduce some evidence of failure to mitigate.

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Conclusions

As far as the reason for dismissal is concerned, we find that Mrs Whitaker took the decision that the claimant should be dismissed, and that her reasons for doing so were those given to the claimant. We are satisfied that the respondent has proved that on balance. We had no evidence to indicate that Mrs Whitaker acted in concert with the respondent to dismiss the claimant because she presented a grievance against Ms Henderson. We accept that she believed that the claimant had taken the items without permission and did not return them and had therefore stolen the items. That is an act of misconduct and a potentially fair reason for dismissal.

We have concluded in our findings of fact that she did not have a reasonable belief following a reasonable investigation that the claimant had committed the conduct complained of. Essentially she had the word of Mrs Lucas against the word of the claimant. She had regard to the evidence of others and circumstantial evidence in deciding that the claimant was not telling the truth. She made findings as to the credibility of the claimant and of Mrs Lunney which no reasonable employer would have made. Mrs Whitaker reached conclusions which were not supported by the evidence. Mrs Whitaker relied on incorrect facts or misinterpreted the facts. No meaningful consideration was given to the evidence which the claimant produced.

Accordingly the dismissal is unfair.

The respondent has not persuaded us that the claimant caused or contributed to her dismissal, or that we should make a Polkey reduction.

We award the basic award, which was agreed between the parties of £7,740, and a compensatory award of £13,470 (immediate loss of £12,540.50 plus future loss of £630 plus £300 for loss or rights). The claimant is awarded her expenses in respect of the hearing fee of £190. There is no reason why the full amount should not be awarded when she has succeeded in her claim, and the compensatory award has not been reduced for any reason.

The recoupment regulations apply as the claimant was paid JSA following her dismissal.

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Gavin Booth

The Law at Work

19 Etive Court

Cumbernauld

Lanarkshire

Scotland

G67 4JA

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