Miskimmin v Schuh Ltd [2010] NIIT 06560

THE INDUSTRIAL TRIBUNALS

CASE REF: 06560/09

CLAIMANT: Brian David Miskimmin

RESPONDENT: Schuh Ltd

DECISION

The decision of the tribunal is that the claimant was not unfairly dismissed.

Constitution of Tribunal:

Chairman: Mr N Kelly

Members: Mrs T Hughes

Mr I Rosbotham

Appearances:

The claimant was represented by Mr E Foster, Barrister-at-Law, instructed by Reavey & Co, Solicitors, Belfast.

The respondent was represented by Ms G Wilson, of MacRoberts LLP, Glasgow.

THE ISSUE

(1) The issue for determination by the tribunal was whether the claimant had been unfairly dismissed by the respondent contrary to Part XI of the Employment Rights (Northern Ireland) Order 1996 (“the 1996 Order”).

GENERAL REMARKS

(2) The tribunal would like to record its appreciation of the professional and helpful manner in which Mr Foster BL and Ms Wilson co-operated with the timetabling of the evidence and submissions in this hearing, in accordance with Regulation 3(4) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (Northern Ireland) 2005 (“the 2005 Rules”).

(3) The tribunal heard evidence from the claimant, Mr Sean McKee, the respondent’s Divisional Manager, and Mr Tom Lynch, the respondent’s Operations Director. It was referred to approximately 450 pages of documentation and to a separate folder containing 32 authorities. In the course of examination-in-chief and cross-examination of the witnesses, the tribunal was taken through CCTV footage recorded in the respondent’s cash office on 15 and 16 May 2009.

RELEVANT FINDINGS OF FACT

(4) The claimant first commenced employment with the respondent at age 16 on a part-time basis. He commenced full-time employment with the respondent when he was 18 for a period of approximately five years. He then left the respondent’s employment for approximately one year before rejoining on 28 May 2007 as a full-time sales advisor. He was promoted to trainee manager on 15 September 2008. He was dismissed on 27 May 2009.

(5) The respondent operates a shoe retailing business with branches throughout the United Kingdom, including a branch in Royal Avenue, Belfast.

(6) At the end of each trading day, the normal practice was for the “authorising manager”, who was responsible for cash tills in the Royal Avenue Branch, to take the till trays to the cash office. The manager would first remove credit card slips from the tray and check that they tallied with the electronic record generated by each till and held on the office PC. The credit card slips were then separated from the cash and they form no part of this case. The authorising manager would then separate off a £50 cash float from each till for use on the next trading day. That cash float remained in the till drawer and that drawer was stored in the office safe. The remaining cash in each till drawer had to be banked. The authorising manager would separate out, for each till, each denomination in notes and coins and enter each amount in the banking record which was generated on the screen of the office computer. That banking record was printed off and signed by the authorising manager and witnessed by another member of staff. The cash for each till was placed in a clear plastic envelope which was then sealed. That clear plastic envelope, together with a printed and signed banking report for each till was then placed in a grey plastic outer bag which was then also sealed. The grey outer plastic bag was then placed in the office safe for collection by Securicor on the next trading day.

(7) Each manager had access to the office safe. The key to the office safe had to be assembled and disassembled on each occasion that it was used. Each manager had in his or her possession a copy of the “bit” ie the end of the key. That bit was screwed onto the shaft of the key and the shaft was kept in a cabinet beside the office safe.

(8) On 27 March 2009, the Ulster Bank received, in the normal way, a cash delivery from the Royal Avenue branch which had been collected by Securicor. The grey outer plastic bag was opened in their cash office and the clear plastic envelope for one of the tills was found to contain £1,000 less than the figure shown on the banking report. In other words, £1,000 was missing. An official of the Ulster Bank, Miss Gillian Elliffe later e-mailed the Head Office of the respondent to confirm that the lodgement had been £1,000 short. Miss Elliffe was quite specific in the e-mail that the Ulster Bank had spoken to the claimant on the telephone to notify him about the discrepancy in the lodgement which he had authorised. The claimant subsequently denied ever receiving that telephone call and the message was not passed on by him or by anyone else in the respondent’s Royal Avenue branch to their Head Office at the time. The respondent checked the CCTV footage of the cash office in respect of that lodgement and could find nothing unusual. The respondent decided that it had no evidence upon which disciplinary action could be taken. However, the Ulster Bank was asked to contact the respondent’s Head Office, and not the local branch, if such discrepancy ever arose again.

(9) On 15 May 2009, the claimant was again the authorising manager for two tills; Till 01 and Till 02. The lodgement in respect of Till 02 was in order and is not relevant to this case. The banking record for Till 01 showed that £1,230.54 was due to be banked. £1,220 was in notes and the reminder in coins. When the grey outer bag was opened in the Ulster Bank on Monday 18 May 2009, the cash office in the Ulster Bank noticed a tear in the clear plastic envelope for Till 01 and also found that it contained only £10.54 in cash. £1,220 in notes was missing.

(10) The claimant had gone on holiday on 18 May – 25 May 2009.

(11) Mr Sean McKee was the respondent’s Divisional Manager, responsible for its branches in Northern Ireland, the Republic and the North of England. He was in Manchester when the Ulster Bank notified the respondent’s Head Office of the discrepancy on 18 May 2009. He asked Mr Nick Coyle, the assistant manager in the Royal Avenue Branch to view the CCTV footage for 15 May 2009. Mr Coyle did so and then telephoned Mr McKee later that day to report that the CCTV footage showed some unusual behaviour and a clear departure from normal banking procedure.

(12) Mr McKee went to the Royal Avenue branch on 21 May 2009 and viewed the CCTV footage. The CCTV camera was placed high on the wall at one end of the cash office. That room was roughly rectangular in shape with the only door at one end, and a safe and a management notice board at the other end underneath the CCTV camera. On the left hand side of the room, when viewed from the door, was a long counter holding the computer, and the hard drive and monitor for the CCTV system. It also provided a working surface for counting money and completing paperwork.

(13) There was a blind spot underneath the CCTV camera. Anyone at that end of the room, working at the safe or at the management notice board, was not in sight of the camera.

(14) The CCTV footage for 15 May, viewed by Mr McKee, showed the claimant and a more junior employee, Ms Mairead McLaughlin enter the cash office after trading had ceased for that day. The claimant sat at the computer which rested on the counter at the end of the room closest to the door and furthest from the safe. The procedure initially adopted by the claimant appeared to be perfectly normal. He appeared to do the following;-

(i) Remove the credit card slips from the till and check that they tallied with the electronic record.

(ii) Enter his password on the computer.

(iii) Separate the £50 float for use the next day.

(iv) Check and count the various denominations of coins and enter them on the banking record on the screen.

(v) Do the same with paper money.

(vi) Reach under the counter to where the banking bags and stationery are kept in an unlocked MDF cupboard.

(vii) Take out a grey outer bag and some clear inner bags.

(viii) Take the float to the safe.

(ix) Print off the two banking records showing the amounts and denominations of currency to be banked and sign the banking record.

(x) At this point on the CCTV footage viewed by Mr McKee, Miss McLaughlin enters the room and verifies the banking record and signs it.

(15) The CCTV footage viewed by Mr McKee then appears to show;-

(i) The claimant seals the two clear plastic envelopes, one for each till, by removing a tear off strip which exposed an adhesive surface.

(ii) The clear plastic envelopes are then placed into the grey outer bag together with the banking records.

(iii) The claimant then writes on the front of the grey outer bag. There were two boxes to be completed. The first was supposed to show the address of the branch of the respondent and the second was supposed to show the address of the Ulster Bank. The claimant put the tear off strip from the grey outer bag in the office bin.

(iv) The claimant puts the grey outer plastic bag in the safe to await collection by Securicor the next day.

(16) The procedures followed by the claimant and his actions were entirely normal up to this point. The CCTV footage viewed by Mr McKee then showed;-

(i) The claimant puts his newspaper in the office bin and puts his coat on. Miss McLaughlin appears to tidy up the office and then put her coat on. Miss McLaughlin leaves the room. Mr McKee regarded Miss McLaughlin leaving the room and therefore leaving the claimant on his own in the cash office as a serious breach of banking procedure. He believed that the claimant, as manager, should have ensured that he had a witness to each stage of the banking procedure up to the point when, after locking the safe, both members of staff left the cash office together.

(ii) A few minutes later, at 18.42 pm, the claimant is still in the cash office, in the area of the safe. He comes into view of the camera, puts a pen in his mouth, and crouches down in front of the counter in the area of the cupboard which contains the banking bags.

(iii) The claimant stands up and, almost immediately, Miss McLaughlin re-enters the room and gives the claimant the stockroom key which is kept in the safe overnight.

(iv) Miss McLaughlin then leaves again and the claimant crutches down in front of the cupboard and removes a new grey outer bag. He walks over to the safe and leans over the counter writing on the outside of the new grey outer bag.

(v) He pus the pen back in his mouth and at 18.44 moves back to the area of the safe.

(vi) At 18.46 he moves back into the view of the camera. He appears to be constructing the safe key. He then moves off camera in the area of the safe. He re-appears some two minutes later and, after switching off the light, leaves the cash office at 18.48.

(17) The CCTV footage for the next day, Saturday 16 May 2009 was also examined by Mr McKee. It showed;-

(i) Nick Coyle, another employee of the respondent, entering the cash office at 8.02 am.

(ii) Nick Coyle wedging open the office door.

(iii) Miss McLaughlin entering at 8.23 and the claimant at 8.24.

(iv) The claimant constructing the safe key and opening the safe. He handed the stockroom keys to Miss McLaughlin.

(v) The claimant lifting two till trays containing floats out of the safe and checking the floats.

(18) The CCTV was activated by a motion sensor and therefore only recorded periods when an individual was in the cash office and did not operate when there was no movement. The next relevant footage viewed by Mr McKee showed;-

(i) At 11.05 a Securicor employee arriving to pick up the banking bags.

(ii) He carried a handheld device which was used to scan the barcode on grey outer bags and to print a receipt for retention in the respondent’s branch.

(iii) David Cairns, another manager employed by the respondent, is the only other person in the cash office at this stage. He hands the grey outer bag to the Securicor employee.

(iv) The Securicor guard appears to examine the bag and appears to be unhappy with the seal. He hands the grey outer bag back to David Cairns who gets another grey outer bag out of the MDF cupboard. He opens the grey outer bag which had been handed back to him by the Securicor guard and removes the contents in the presence of the Securicor guard. He then fills in the boxes on the front of the new grey outer bag and refills it. He seals the new grey outer bag and hands it to the Securicor guard who scans the barcode and prints off and gives a receipt to Mr Cairns.

(19) Mr McKee viewed the CCTV footage a number of times. He contacted the Ulster Bank to ask whether they were happy with the banking procedures in their cash office and to ask if he could view the CCTV footage taken in their premises. They refused to allow him to view that footage, for security reasons, but confirmed that they were entirely happy with the procedures followed in their cash office.

(20) Mr McKee was concerned about the claimant’s actions at the end of his shift on 15 May in removing the original grey outer bag (the first bag) from the safe and opening it ie breaking the seal, and replacing it with another grey outer bag (the second bag). He was not concerned about the actions of David Cairns on 16 May 2009 in opening the second bag at the request of the Securicor guard, and in the presence of that Securicor guard, and transferring the contents of that second bag to another new grey outer bag (the third bag).

(21) Mr McKee, accompanied by Mrs Nicola Brown, the branch manager, conducted an investigatory interview with the claimant on 26 May, on the claimant’s return from holiday. Mr McKee asked the claimant whether there had been anything unusual about the banking process on 15 May.

(22) The claimant denied in evidence that he had been asked that question. However, the tribunal has serious doubts with the claimant’s evidence and credibility and it prefers the evidence of Mr McKee in this respect. The claimant told Mr McKee that there had not been anything unusual in the banking procedure on 15 May. Mr McKee then told the claimant that £1,220 was missing and asked him if he knew anything about it. The claimant denied any knowledge of the loss.

At the end of that meeting, Mr McKee suspended the claimant on full pay pending disciplinary proceedings and later that day that suspension was confirmed in writing.

(23) The letter of 25 May 2009 also fixed the disciplinary interview for 27 May and stated:-

“The issue to be discussed with you is your major breach of banking procedures which led to a significant loss of the company’s money.”

The claimant received that letter on 26 May but did not object to the timing of the disciplinary interview and did not ask for a delay.

(24) The claimant attended the disciplinary meeting accompanied by his then girlfriend. Mr McKee was accompanied by Mrs Brown. The claimant was asked by Mr McKee to explain the banking procedures. He confirmed that those procedures required a witness to the counting of the money, the locking of the safe and that the witness and the authorising manager should leave the cash office together. The claimant then read out a written statement which he had prepared for the disciplinary interview and which he subsequently retained. That written statement is no longer available. The claimant was shown the CCTV footage for 15 May. The claimant then confirmed that he recognised that there was a breach in the banking procedure in that the grey outer bag was moved from the safe, with no witness present, and replaced. He stated that he had noticed that the grey outer bag had had the wrong forwarding address on it. He stated that he had written the name of the respondent by mistake in both the “from” and “to” boxes on the face of the grey outer bag. He stated that he must have thrown the first grey outer bag away outside the office rather than discarding it in the office bin. He stated that while he was at the safe he was taking the time to check that the stockroom keys were in the safe. When he was asked why he stood up and moved away from the stationery cupboard when Ms McLaughlin had re-entered the room, he said he had only been checking the cupboard to make sure that the door was shut properly. The claimant argued the CCTV footage for the next day was important. He argued that somebody else could have interfered with the bag before the Securicor employee arrived. Mr McKee adjourned the meeting so that he could examine again the CCTV footage for 16 May. The claimant was not afforded an opportunity to view this footage.

(25) Mr McKee decided that there had been a clear breach of banking procedure in that the first grey outer bag had been opened and replaced without a witness present even though Ms McLaughlin had still been available. The claimant had failed to mention the irregularity until he was shown the CCTV footage. He felt that the disposal of the first grey outer bag was irregular in that it had not been placed in the office bin where the claimant had placed several other articles.

(26) At the end of the disciplinary meeting, Mr McKee summarily dismissed the claimant and explained his right of appeal. That was confirmed in writing later on 27 May 2009. That letter stated:-

“The reason for your dismissal is the fact that you committed a severe breach of the company’s cash handling procedure and the company’s suspicion of your involvement in the disappearance of £1,220 from the Belfast store’s takings on 15 May 2009.”

(27) The claimant appealed by letter dated 27 May 2009. He asked to be allowed legal representation or to be allowed to be accompanied by his father. He was advised that Mr Tom Lynch, the respondent’s operations director, would hear his appeal on 10 June 2009 and that he could be represented by a trade union representative or by a work colleague. He was supplied with a copy of the notes of the disciplinary hearing.

(28) The claimant attended the appeal hearing, again accompanied by his then girlfriend. Mr Lynch was accompanied by Mr Nick Coyle. The claimant presented typed notes of appeal. He claimed that he had not realised that he was under suspicion of theft during the disciplinary interview and that therefore he had not been given a proper opportunity to defend himself. He stated that he had felt intimidated during the disciplinary interview due to a lack of proper representation. He had not tried to fill in the writing on the second bag off camera. He argued that David Cairns didn’t notice anything wrong with the clear inner bags for till 01 when he replaced the grey outer bag on 16 May and that this proved that the money was still intact at this stage.

(29) Mr Lynch had not viewed the CCTV footage before hearing the appeal but viewed it before reaching a decision. He regarded the claimant’s request to be allowed to view CCTV footage of 16 May as a smokescreen. He wanted an explanation from the claimant for his behaviour on 15 May and did not feel that he got a satisfactory explanation. He felt in particular the claimant had been fully aware of the correct banking procedure and that he had received a recent reminder of that procedure from Mrs Brown. That reminder had been issued to all managers following an incident in which another manager, Stephen Marchant, had opened a banking bag without a witness present. In that particular incident no loss had been occasioned and no formal disciplinary action had been taken. The claimant’s explanation that he had noticed that the address was wrong on the envelope gave Mr Lynch difficulty. He felt that at this stage on a Friday evening most employees would have been eager to get away. He also felt that it would have been relatively easy, given the space available on the face of the grey outer bag, to have simply scored out an incorrect address and to have written in the correct address. He felt that there would have been no need to have torn open the first bag and to have replaced it with the second bag. He also felt that the explanation for the disposal of the first bag, i.e. that the claimant must have stuck it in his pocket and disposed of it later, was very suspicious. He felt that summary dismissal for gross misconduct was fair and that it was reasonable to conclude that the claimant had been personally responsible for the breach in banking procedure and for the loss of the £1,220.

RELEVANT LAW

(30) The Employment Appeal Tribunal determined in Iceland Frozen Foods Limited –v- Jones [1982] IRLR 439, that the function of an industrial tribunal, in a case of this nature, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair; if the dismissal falls outside the band, it is unfair.

(31) The Court of Appeal in Andrew James Taylor –v- OCS Group Ltd [2006] EWCA Civ 702 stated:-

“The use of the words “re-hearing” and “review” albeit only intended as an illustration, does create a risk that Employment Tribunals will fall into the trap of deciding whether the dismissal procedure was fair or unfair by reference to their view of whether an appeal was a re-hearing or a mere review. This error is avoided if Employment Tribunals realise their task is to apply the statutory test. In doing that, they should consider the fairness of the whole disciplinary process.”

The Court went on to say:-

“In saying this, it may appear that we are suggesting that Employment Tribunals should consider procedural fairness separately from other issues arising. We are not; indeed it is trite law that [GB equivalent legislation] requires the Employment Tribunal to approach its task broadly as an industrial jury. That means that they should consider the procedural issues together with the reason for the dismissal as they have found it to be. The two impact on each other and the Employment Tribunals task is to determine whether, in all the circumstances of the case, the employer acted reasonably in treating the reason they have found as a sufficient reason to dismiss.”

(32) Article 130 of the 1996 Order provides that the determination of the question i.e. whether the dismissal is fair or unfair, depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating the reason for the dismissal as a sufficient reason for dismissing the employee and that question shall be determined in accordance with equity and the substantive merits of each case.

(33) The Employment Appeal Tribunal in Hadjioannou –v- Coral Casinos Limited [1981] IRLR 352 held that arguments put on the basis of disparity were of limited significance in determining the fairness of a dismissal. Evidence as to decisions made by an employer in truly parallel circumstances may be sufficient to support an argument in a particular case that it was not reasonable on the part of an employer to visit the particular employee’s conduct with the penalty of dismissal and that some lesser penalty would have been appropriate in the circumstances. Waterhouse J stated:-

“The emphasis in [equivalent GB legislation] is upon the particular circumstances of the individual employee’s case. It would be most regrettable if tribunals or employers were to be encouraged to adopt rules of thumb or codes for dealing with industrial relations problems and in particular, issues arising when dismissal is being considered. It is of the highest importance that flexibility should be retained and we hope that nothing we say in the course of our judgment will encourage employers or tribunals to think that a tariff approach to industrial misconduct is appropriate. One has only to consider for a moment the dangers of the tariff approach in other spheres of the law to realise how inappropriate it would be to import it into this particular legislation.”

That approach was expressly approved by the Court of Appeal in Paul –v- East Surrey District Health Authority [1995] IRLR 305. See also Levenes Solicitors –v- Dalley UK EAT/0330/06/DA.

(34) The Industrial Tribunal has a limited role in these circumstances. It is not for the tribunal to determine whether or not the claimant was involved in the theft of the money from the respondent’s premises on 15 May 2009. The tribunal’s role is to determine whether or not the employer acted fairly, in all the circumstances, in dismissing the claimant. The Court of Appeal in London Ambulance Service NHS Trust –v- Simon Small [2009] EWCA Civ 220 stated, at paragraph 43, that the real question which the tribunal has to bear in mind in these circumstances, is whether the employer acted fairly and reasonably in all the circumstances at the time of dismissal. It stated at paragraphs 44-46:-

“(44) I agree with the EAT that the ET was bound to make findings of fact about Mr Small’s conduct for the purposes of deciding the extent to which Mr Small’s conduct contributed to his dismissal. That was a different issue from whether the Trust unfairly dismissed Mr Small from his conduct. Contributory fault only arose for decision, if it was established that the dismissal was unfair. The contributory fault decision was for the ET to make on the evidence that it had heard. It was never a decision for the Trust to make. That makes it different from the decision to dismiss, which was for the Trust to make. It was not the role of the ET to conduct a re-hearing of the facts which formed the basis of the Trust’s decision to dismiss. The ET’s proper role was objectively to review the fairness of Mr Small’s dismissal by the Trust.

(45) I am unable to agree with the EAT that the ET kept the issues and the relevant facts separate or that it avoided the error of substituting its own judgment about dismissal. Although the ET rightly warned itself against substitution and thought that it was not falling into that error, my reading of the facts is that its findings about Mr Small’s conduct seeped into its reasoning about the unfairness of the dismissal.

(46) Mr Marsh spoke of his experience that ETs often structure their reasons setting out all their findings of fact in one place and then drawing on the findings at the later stages of applying the law to the relevant facts. It is not the function of Appeal Courts to tell trial tribunals and courts how to write their judgments. As a general rule, however, it might be better practice in an unfair dismissal for an ET to keep its findings on that particular issue separate from its findings on disputed facts that are only relevant to other issues, such as contributory fault, constructive dismissal and increasingly, discrimination and victimisation claims. Of course some facts will be relevant to more than one issue but the legal elements of the different issues, the role of the ET and the relevant facts are not necessarily all the same. Separate sequential findings of fact on discrete issues may help to avoid errors of law, such as substitution, even if it may lead to some duplication.”

(35) In Santamera –v- Express Cargo Forwarding trading as IEC Ltd [2003] IRLR 273, the EAT held that:-

“[Equivalent GB legislation] and the cases decided under it and its predecessors do not, of course, require the dismissing employer to be satisfied, on the balance of probabilities, that the employee whose conduct is in question has actually done what he or she is alleged to have done. In a dismissal based on conduct, it is sufficient for the employer to have a genuine belief that the employee has behaved in the manner alleged, to have reasonable grounds for that belief, and to have conducted an investigation which is fair and proportionate to the employer’s capacity and resources. The employer has to act fairly, but fairness does not require a forensic or quasi judicial investigation, for which the employer is unlikely in any event to be qualified, and for which he, she or it may lack the means.”

(36) In Sainsburys Supermarkets Ltd –v- Hitt [2003] IRLR23, the Court of Appeal held that:-

“The range of reasonable responses test, (or, to put it another way, the need to apply the objective standards of the reasonable employer) applies as much to the question of whether the investigation into the suspected misconduct was reasonable in all the circumstances as it does to the reasonableness of the decision to dismiss for the conduct reason.”

CONTENTIONS OF THE PARTIES

CONTENTIONS OF THE RESPONDENT

(37) The respondent argued that the reason for the dismissal was conduct which was a potentially fair reason within the terms of the 1996 Order and that the investigation process and the disciplinary procedures were fairly conducted when judged against the objective standard of a reasonable employer. There was no obligation to involve the police or to formally interview any other members of staff. The conduct of the claimant on the CCTV footage of 15 May 2009 was a sufficient basis for a reasonable employer to conclude, in the absence of an adequate explanation, that there had been a serious breach of banking procedure and that money had been lost as a result of that serious breach of banking procedure. No reasonable explanation had been forthcoming from the claimant. The claimant had been fully aware of the nature of the charge against him from the investigation meeting and had been given a full opportunity to respond to that charge. There were no truly analogous circumstances in which another employee had been treated differently. The previous incident in which Mr Marchant had been involved was entirely different in that no money had been lost and there was no reason to believe that Mr Marchant had any ulterior motive in breaching the procedure. As far as Mr Cairns actions on 16 May were concerned, he had opened the grey outer bag in the presence of the Securicor guard and at his request.

CONTENTIONS OF THE CLAIMANT

(38) Mr Foster argued that the key issue in this case was the investigation. He referred to Harvey, Section D1482 and argued that a reasonable investigation was absolutely essential in circumstances such as the present case and that no reasonable investigation had occurred. Mr McKee had failed to take formal statements from Nick Coyle, David Cairns or from the Securicor guard. All had been seen on the CCTV footage on the relevant dates. Mr Coyle had been seen in the vicinity of the hard drive accessing the CCTV footage. There had only been informal discussions with some of these witnesses and Mr McKee did not himself speak to David Cairns. The respondent had also failed to retain the second bag which Mr Cairns had put in the office bin. Most surprisingly, they had failed to notify the police. They admitted to having no particular expertise in this area and a police investigation would have possibly elucidated further evidence including CCTV footage from the Ulster Bank. The claimant had not been given adequate notice of the disciplinary hearing and had not been provided with adequate details of the allegations. He had not been allowed to view the CCTV footage for 16 May. The claimant had not been asked to comment on and approve the notes of the disciplinary meeting on 27 May. Mr Lynch had conducted the appeal hearing without first viewing the CCTV footage. Mr Foster argued that all of this meant that the investigation and disciplinary process did not satisfy the objective standard of reasonableness. The employer had not referred to LRA or ACAS Codes of Practice. The dismissal was therefore unfair.

DECISION

(39) The first issue for the tribunal to determine is the reason for the dismissal. The onus of proof in this respect is on the employer. The tribunal is satisfied that the reason for dismissal was conduct.

(40) Applying the test set out in Santamera and Sainsburys, above, the tribunal is satisfied that the investigation conducted by the respondent was a reasonable one when judged against an objective standard. It is often possible to criticise various aspects of an employer’s investigation and, with the benefit of hindsight, to suggest ways in which it might have been conducted differently. For example, it would have been better if the respondent had, given the seriousness of the incident, taken formal statements from every employee present on the premises at the relevant times. It would also have been preferable if the notes of the disciplinary meeting had been forwarded immediately to the claimant for comment and possible agreement rather than being supplied when he lodged his appeal. However, neither of these issues materially affected the fairness or the reasonableness of the investigation. The respondent had not taken any action in relation to the earlier incident on 27 March, other than to have Mrs Brown verbally remind the managers in the Belfast branch of the necessity to observe proper banking procedure. In the present incident, when Mr Coyle indicated to Mr McKee that there were unusual circumstances shown on CCTV footage for 15 May, Mr McKee properly viewed the relevant CCTV footage on several occasions before proceeding further. In the tribunal’s view, the actions of the claimant, which were shown on CCTV footage, were not at any stage adequately explained to the respondent. Mr McKee pursued his enquiries as far as possible with the bank and since, the bank confirmed that the grey outer bag had been received intact, there was no reason for the respondent to pursue any further investigation in relation to Securicor. The footage for 16 May did not disclose any reason which would have required a reasonable employer to pursue further investigations in relation to Mr Cairns or any other party. The claimant was the first person to open the safe on that day and there is no evidence that Mr Cairns or any other party had any opportunity to interfere with the contents of the safe until the Securicor guard arrived. Mr Cairns had opened the second bag and replaced it with a third bag. However, that was done in plain sight and in the full view of the Securicor guard. It is clear that Mr Cairns and the Securicor guard did not notice anything was wrong with the clear plastic envelope for the relevant till. However, neither were looking at the clear plastic envelopes or, crucially, comparing the contents of those envelopes with the banking records. Their concern was simply replacing the grey outer bag. There was therefore no reason for a reasonable employer to conclude that further investigation was required in this respect. The tribunal is content that the disciplinary and appeal process conducted by the respondent was also fair when judged against an objective standard. The claimant was given relatively short notice of the disciplinary hearing. However, he did not object and did not seek an extension of time. He was not allowed legal representation or to have his father present. However, this was not one of the limited band of cases where legal representation might have been a requirement.

(41) The tribunal is satisfied that, at each stage of the procedure, the claimant knew the nature of the charge against him. While the letter suspending him from duty and arranging the disciplinary interview did not directly accuse him of theft, no one in the claimant’s position, given the circumstances of this case, could reasonably have misunderstood his position. He was given a full opportunity to respond and to provide a satisfactory explanation for his actions on 15 May. Mr McKee and Mr Lynch stated in evidence that they were not satisfied that any reasonable explanation had been given and that they found his responses to be evasive. He would answer a question with a question and they were simply not satisfied with his responses. Having heard the claimant and having heard Mr McKee and Mr Lynch, and after having examined the record of the disciplinary interview and appeal hearing, the tribunal is satisfied that the procedure was conducted fairly and that Mr McKee and Mr Lynch were entitled to reach the conclusion that the claimant’s behaviour on 15 May was extremely suspicious and that no satisfactory explanation had been forthcoming. The tribunal notes in passing that during the disciplinary interview on 27 May, the claimant stated, when referring to the time he was out of view of the CCTV camera in the area of the safe after changing the grey outer bag, that he was taking his time to check the keys were in the safe from the stock room. In evidence to the tribunal, the claimant alleged (apparently for the first time) that he had in fact during this period been sitting or kneeling on the floor checking the money in the two till trays to ensure that the correct amount of money for the purposes of a float had been retained. He had felt that he might have made a mistake in this regard. When Miss Wilson cross-examined him on this point he outlined in detail the amount of time he would have taken to carry out this task. In total this would have been, according to the claimant’s estimate under cross-examination, some four minutes. It was pointed out to him that on the CCTV footage he was out of sight of the camera for some two minutes, and his response was that he didn’t actually count all the money but only some of it. Given that the claimant had already been observed on a CCTV footage checking those floats and again on the next day checking those floats, and since counting only part of the money in each float do not seem to be particularly valuable exercise, that explanation does not seem entirely credible. However this new explanation was not before the respondent during the disciplinary or appeal process, and for the purposes of determining whether or not the dismissal was fair has to be set to one side.

(42) While the claimant had a clear disciplinary record, this was a serious incident and a reasonable employer is entitled in an incident of this type, to summarily dismiss an employee if, after having conducted a reasonable investigation, it genuinely believes on reasonable grounds that the employee had committed a serious breach of procedure leading to a substantial financial loss to the respondent. The tribunal is therefore satisfied that the dismissal was both procedurally and substantively fair. The claim is dismissed.

Chairman:

Date and place of hearing: 9 and 10 December 2009, Belfast.

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Miskimmin v Schuh Ltd [2010] NIIT 06560_09IT (22 January 2010) URL: http://www.bailii.org/nie/cases/NIIT/2010/06560_09IT.html Cite as: [2010] NIIT 6560_9IT, [2010] NIIT 06560_09IT

Industrial Tribunals Northern Ireland Decisions