United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J DONOVAN (ELAAS)


 


MR JUSTICE KIRKWOOD: This is the Preliminary Hearing of an appeal by an employee against the decision of an Industrial Tribunal at Ashford, Kent, on 9 December 1997. The Tribunal found that the employee, Mrs Palmer, was unfairly dismissed but contributed to her own dismissal to the extent of 100%. Extended Reasons for the decision were given on 2 January 1998.

The appeal, as framed in the Notice of Appeal lodged with the Industrial Tribunal in February is against the finding of 100% contribution. We have been handed today a draft amended Grounds of Appeal, to which I will come in a moment.

The background to all this is that Mrs Palmer worked for Clarke & Symonds Ltd, the Respondent, as a receptionist and office clerk from February 1988 until 3 September 1997. The Respondent company is a car repair business. In the course of her work Mrs Palmer collected payment in respect of invoices to customers and excesses due under insurance policies.

On 25 July 1997 a Mr Ham collected his car after repair. The invoice was for £112.44. He said it was too much. He asked for a reduction for cash. Mr Ham was prepared to pay £95.69 and gave Mrs Palmer £100. She had no change. She suggested the balance be given to the Respondent's driver as a tip and Mr Ham was given an informal receipt. The driver did not get his tip. He complained to a director, Mr Clarke. Mr Clarke found that the receipt of neither the £95.69 or £100 had been recorded. Mrs Palmer had issued a credit note for the full amount of the invoice. Mrs Moon the bookkeeper was on holiday. Mr Clarke felt he did not have time to question Mrs Palmer himself about the matter.

On 15 August Mrs Palmer went on holiday. Mrs Moon, who was now back, sent letters to customers who had outstanding invoices in respect of insurance excess payments. Eight customers telephoned and said they had paid their excess in cash to the receptionist who was identified as Mrs Palmer. The Respondent company informed the police. On her return from holiday Mrs Palmer was arrested by the police and bailed to return to the police station. Apparently the police did not proceed on the basis of insufficient evidence.

Mrs Palmer did not return to work. She told the Industrial Tribunal the police had told her not to. As she did not return, Mr Clarke wrote to her terminating her employment. The Industrial Tribunal found that the Respondent had reasonable grounds for suspecting that the Appellant, Mrs Palmer, was guilty of misconduct in that money which had been in her control could not be found in the books. The Respondent carried out, it was found, reasonable investigation but the Respondent failed to carry out any proper procedures in respect of the dismissal, so the dismissal was unfair.

Mrs Palmer maintained at the Industrial Tribunal that she had put the money in the filing cabinet for Mrs Moon to collect. "Anybody," she said, "could have taken it." Mrs Moon denied that, she said the money was invariably brought to her. The Industrial Tribunal did not accept Mrs Palmer's explanation but resolved that dispute in favour of the employer.

We take the original grounds of appeal now to have been abandoned and we go to the amended grounds, which are that the Industrial Tribunal erred in law in that, having found the Applicant's dismissal to be procedurally unfair, it wholly failed to consider what the outcome of a fair procedure would have been. It is perfectly true to say that in its Extended Reasons the Industrial Tribunal did not address that question at all. The submission is based upon the hypothesis that a fair procedure may have had a different outcome in the sense, for example, of delaying the dismissal so that Mrs Palmer would have had the benefit of her contract of employment for a little longer than she did.

It is our understanding that in fact Mrs Palmer was paid two weeks wages in lieu of notice (we understand that from the form IT3) which is an indication that the Respondent employer did not treat Mrs Palmer as dismissed summarily for gross misconduct but terminated her contract upon notice. Had a proper procedure been followed, even if that procedure could be taken no further than putting the allegations and matters to Mrs Palmer by letter, it is just conceivable that, as is submitted on her behalf, there might have been some protraction of the process that ultimately led to Mrs Palmer's dismissal.

In the circumstances and without, if we may be bold enough to say so, any sense of enthusiasm about the merits, we nevertheless consider that there is a point of law to be argued and so the case will go to a full hearing on that limited point alone. We will allow one to two hours for the hearing of the appeal.

The transcript of what I have said will go on the files so the Tribunal hearing the matter will have it before them. I will give leave to amend the Grounds of Appeal by deleting the grounds lodged on 13 February in their entirety and substitute the grounds put in, in draft, today. Perhaps that amendment can be formally made within seven days.