The claimant was employed as a driver with the respondent company, which provided cash handling services in the form of delivery, transport and collection of cash.   The claimant began this employment in September 2013 until his dismissal on the grounds of gross misconduct on 9th May 2019.

The index incident took place on 10th April 2019 where the claimant was completing a number of deliveries - one of these was to the Poundstretcher store in Newry.   This involved delivering bags of coins which were of indeterminate weight but were regarded as ‘heavy’.    The difficulty arising here was that the claimant had to transport the money upstairs into an office.  The claimant suffered an injury to his bicep in completing this.  He was initially unaware of the pain and he completed the remainder of his duties for the rest of the day.  The claimant had a contractual duty to report injuries and he did so to his manager in order for it to be recorded in the accident book.  The accident book was not available and instead, it was recorded the next day.

There was an accident investigation carried out which focused on the type of bags that were used.  The claimant had previously raised the issue of the bags with the respondent.   This was on the basis that there were bags being used without handles which were the same as those used in the incident in Poundstretcher.  During the investigation, the claimant gave an account of what had happened.  Cash security concerns that arose as it was stated that the Claimant had left the box at the top of the stairs whilst he recovered the rest of the coins.   This was passed on and CCTV footage from the Newry store was recovered and there was a clear disparity between the claimant’s account and what had happened.

The CCTV showed that he had used a trolley rather than carrying the bags as he originally stated.   The claimant was suspended and the disciplinary procedure carried out was under the ‘rules covering gross misconduct’ which included ‘falsification of records’ which the respondent argued was the accident book.  The Tribunal did not accept this argument stating that the clear meaning of ‘theft or fraud including falsification of records’ is that there was dishonesty with the intent of personal gain.

At the disciplinary investigation meeting, the claimant was not given any witness statements or made aware of the existence of the CCTV evidence.  Furthermore, he outlined at this point that he had used a trolley as he did not have the correct bags.  This progressed to the disciplinary meeting where Mr Stubber, conducting the meeting, took into account the potential for a fraudulent injury claim even though it was not raised with the claimant at the disciplinary hearing or any letter received by the claimant.

The Tribunal also had concerns with the disciplinary meeting in that mistaken statements from the claimant were not corrected by Mr Stubber and he reiterated the mistaken statement to use it against the claimant.  Therefore, the Tribunal found that Mr Stubber failed to properly engage in finding evidence of intent but rather took a misdescription as proof of dishonest intent.  The appeal was unsuccessful with it being noted that there could have been a fraudulent accident claim when that suggestion was, again, never put to the claimant.

The Tribunal held that there was not a fair and reasonable investigation.  The repeated attempts to get the claimant to confirm statements the investigator knew were wrong, coupled with the focus on a personal injury claim which was never put to the claimant, led to this outcome.  The decision was also substantively unfair on the basis that no reasonable employer would have dismissed the employee for gross misconduct on the facts.  Accordingly, the claimant was found to be unfairly dismissed and was awarded £10,632.93.

Practical Lessons

This case demonstrates both substantive and procedural issues that can arise with a dismissal.  Both elements were found to be unfair here.  Employers should be cognisant in ensuring that the investigation and hearings are conducted with rigour and not regarded as a way to construct a narrative in favour of dismissal.   Additionally, with the substantive element of ‘falsification’ it is interesting to bear in mind that the Tribunal considers this to be ‘dishonesty’ with intent to making a gain.  This may be legally interesting from the perspective of the nature of dishonesty as a state of mind, but this was not given any additional exploration by the Tribunal.