The claimant alongside two others set up the respondent business in 2017.  It was a pub and fine dining restaurant.  The two others were largely responsible for the back of house and the claimant was responsible for the front of house including finances, payroll and the day-to-day running of the business.  In 2018, the respondent was awarded a Michelin star which it retains.

The claimant opened up a ‘Stripe’ account to take deposits and these payments went directly into the claimant’s account.   The respondent also had a portable card-reading device with those payments also going into the claimant’s account.  The two other owners were aware of this.  The issue leading to this case arose on 26th January 2020 when a regular customer was dining with two guests.  This customer was known to pay with cash.   It was noted by the Tribunal that the customer did pay by cash and this was collected by the claimant.  The claimant was then seen walking to the end of the bar, pocketing the money and putting the bill into the bin.   One of the other owners, Mr Bolley-Smith was cashing up at close of business and was surprised to find that there was only £80 cash in the till.  He was also informed that the regular customer noted above had been dining and that he was told he had paid cash.   It was found that the Table in which the customer was sitting at had actually had his bill voided on the system.

The claimant was contacted about the payment and eventually he said that ‘maybe I had [the customer’s] payment in my jacket’.   The claimant attended the premises the next day and caused a bill to be created where he left the sum of money on the desk.  This allowed for the figures to be reconciled from the previous night.   Mr Bolley-Smith reviewed the CCTV footage and suspended the claimant with immediate effect.   An investigation took place in relation to alleged misconduct arising from claiming expenses from the business for goods relating to personal use and for irregularities in relation to cash takings.  It was also alleged that the claimant had disabled the CCTV system when he had returned the next day to create the bill.

The disciplinary meeting took place in February 2020.   It was overseen by an independent HR Consultant.  The claimant covertly recorded the meeting and left the recording device in the room when he was no longer there.  Following further investigations and a subsequent disciplinary meeting it was found that the claimant had committed gross misconduct and he was dismissed.

The Tribunal had to decide upon the admissibility of evidence, namely the covert recording.  Reference was made to Amwell View High School v Dogherty where the public policy justifications for excluding relevant evidence had been outlined such as ensuring that there could be a full and frank exchange of views between members in making a decision.  This does have to be balanced against the relevance of the evidence though.  In this situation a transcript of the recording was allowed but the actual content of it was not supportive of the claimant’s case as the discussion was relating to the claimant’s conduct rather than showing a pre-determined outcome to the case.   The Tribunal in hearing the evidence found that it supported the respondent’s evidence.  The claimant did try to provide an account for the irregularity in relation to the cash payment stating that he had to see if desserts had been provided or not.  This was not accepted by the Tribunal.  As a result, it was found that the claimant had not been unfairly dismissed and the claim was dismissed.

Practical Lessons

This case throws up a few tricky points that can arise through a disciplinary process.  The first, and most notable, aspect was that the claimant covertly recorded the disciplinary meeting and the private discussion of the panel.   This requires a balanced view to be taken by the Tribunal and the Tribunal had decided to examine admissibility at the end of the case.  This simplified matters as the Tribunal was able to determine that it did not actually assist the claimants’ case so there was little detriment to the respondent in admitting the recording as evidence.   The second issue was the decision to dismiss.  In this situation, it turned on credibility and the evidence being given.  The fact that the respondent investigated the case through both looking at the CCTV evidence but also engaging with those who oversee the till system meant that their case was a strong one.  This made it difficult for the Tribunal to accept the claimant’s version of events.

https://www.gov.uk/employment-tribunal-decisions/mr-g-palmer-brown-v-dtsn-ltd-t-slash-a-fordwich-arms-2302749-slash-2020