United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J DONOVAN (of Counsel)
For the Respondent	MR J WATERS (of Counsel) Instructed by: Messrs Bailey & Cogger Solicitors 139 High Street Tunbridge Kent TN9 1DG


 


JUDGE PETER CLARK: The Appellant Mrs Palmer was employed by the Respondents who carry on the business of a vehicle body repair shop as a receptionist and office clerk from February 1988 until her dismissal on 3rd September 1997.

Following that dismissal she presented an Originating Application to the Ashford Employment Tribunal on 10th October 1997. She there complained of unfair dismissal, wrongful dismissal and illegal deductions from her wages. That complaint came before an Employment Tribunal sitting at Ashford on 9th December 1997, chaired by Mr T N May.

By a decision with extended reasons, promulgated on 2nd January 1998, the Tribunal upheld the complaint of unlawful deductions in respect of an advance of £650 deducted from her final month's salary without her written consent. The complaint of unfair dismissal was upheld but no award of compensation was made due to a finding of 100% contribution on her part. There is no express finding on the wrongful dismissal complaint. Against that decision, she appealed to this Appeal Tribunal.

The matter came before a division presided over by Mr Justice Kirkwood for Preliminary Hearing on 15th July 1998. On that occasion the appeal was allowed to proceed to a full hearing on a limited issue, later formulated in amended grounds of appeal with leave of that Tribunal in this way; the Tribunal erred in law in that having found the dismissal to be procedurally unfair, it wholly failed to consider what the outcome of a fair procedure would have been. That amendment fairly reflects the issue identified in the Judgment of Mr Justice Kirkwood.

Background

The material facts found by the Tribunal are these. It was part of the Appellant's duties as receptionist to collect from customers excesses due under the terms of their insurance policies and payments on invoices from customers. Payments were made by cheque, credit card or cash. Where a payment of an insurance excess was made it should be recorded in a book entitled "Customer Excess Record". Amongst the details there recorded was a column in which the book-keeper, Mrs Moon, placed a tick to show that she had received the customer's payment.

In short, a customer, Mr Ham, collected his car on 24th July 1997 and paid £100 in cash against a liability agreed with the Appellant at £95.69. She had no change and it was arranged that the balance would be given to the Respondent's driver as a tip. The driver did not receive his tip, about which he had been told by Mr Ham and so he complained to Mr Clark, a director of the Respondents.

Mr Clark investigated the matter and found that there was no record of Mr Ham's cash payment. At that time, Mrs Moon was on holiday and the Appellant was not asked about the matter at that stage.

On 15th August 1997, the Appellant went on holiday and Mr Clark carried out further investigations by causing letters to be sent to customers who, on the face of it, had outstanding invoices in respect of insurance excess payments. Eight customers replied saying that they had paid their excesses in cash to the receptionist, the Appellant. The police were then contacted but in the event, took no criminal proceedings against the Appellant, due to lack of evidence.

When the Appellant returned from holiday, she was arrested by the police and bailed. She never returned to work. She was then dismissed by the Respondents by letter without any prior hearing. An important factual issue arose before the Tribunal. It was the Appellant's case that she had collected monies from customers and put the money in a filing cabinet drawer until collected by Mrs Moon. Anyone could have taken the money. Mrs Moon disputed that account and said in evidence that the money was invariably brought to her. The Tribunal rejected the Appellant's account. (See the reasons, paragraph 23)

The Tribunal Decision.

On those facts, the Tribunal held that dismissal in the absence of any hearing was unfair, although the Respondent had reasonable grounds for suspecting that the Appellant had misconducted herself, in that money received by her from customers could not be accounted for. Further, the Respondent had carried out a reasonable investigation into the matter. However, the Tribunal went on to find that both the basic award and compensatory award should be reduced by 100% under Sections 122(2) and 123(6) of the Employment Rights Act 1996 respectively. No award of compensation for unfair dismissal was made.

The Appeal

Mr Donovan, who appears on behalf of the Appellant today, as he did at the Preliminary Hearing, submits that the Tribunal failed to carry out the exercise of enquiring into the probable outcome had a proper procedure been carried out prior to dismissal. He submits, under the principle in Polkey and A E Dayton Limited [1988] ICR 142 that had a proper procedure been followed and the Appellant been given a hearing, then there was a chance that she would not have been dismissed at all or at the very least, such a procedure would have postponed the date of dismissal, so that she would have received further pay.

We invited Mr Donovan to consider this proposition, that even if he is right in this Appeal nevertheless, in the light of the Tribunal's finding of 100% contribution, under Section 123(6) of the Act, the result would be the same, that is to say, the finding of unfair dismissal with a nil award of compensation. He accepted the approach to compensation set out in the Judgment of Mr Justice Morison in Digital Equipment Co Ltd & Clements No 2 [1997] ICR 127 as varied by the Court of Appeal on appeal and as conveniently set out at para D2534 of Vol 1 of Harvey on Industrial Relations and Employment Law. Applying that approach, even if a Polkey reduction as it is described, is made to the gross assessment of loss under the compensatory award head, nevertheless, any reduction for contributory fault must then be made in relation to the loss so established and the result would be the same as that in this case.

Accordingly, he accepted that even if the Appeal were to be allowed on the sole issue, that is the Polkey point which is before us, on remission to an Employment Tribunal, in the absence of challenge to the finding of 100% contribution, the result would be the same and accordingly, it would be a purposeless course to take. We think that that concession is rightly made and in these circumstances, we shall dismiss this Appeal.