Flawed investigation procedure lead to an unfair dismissal

In the case of Dibble v Falzon & Falzon, the Employment Appeal Tribunal (EAT) were tasked with determining whether an employer’s decision to dismiss a member of staff for gross misconduct could be considered reasonable given the flaws in the investigation procedure. This case involved an employee, Ms Dibble, who had worked as a waiter at the ‘Anne Arms’ pub since 2003. The employer, Mr and Mrs Falzon, had taken over management of the pub in 2015 during which Dibble was able to boast a clean disciplinary record. However, on 28th March 2016 and incident occurred which caused the employer significant concern. When reviewing CCTV footage of the pub that evening they witnessed footage of Dibble taking coins from the till and placing them in her apron. A meeting was held on 7th April where the employee was asked to explain her actions. During this meeting Dibble struggled to articulate herself and produced three inconsistent explanations. At the end of the meeting the employer told her to return home and re-think her actions, whilst informing her that she was facing allegations of theft and dishonesty. The employer later invited Dibble to a disciplinary hearing, during which she claimed she couldn’t remember why she had taken the money. The employer proceeded to dismiss Dibble for gross misconduct due to theft, sending her a dismissal letter explaining that on the night of the alleged incident the till count was down by £30. Dibble proceeded to bring a claim for unfair dismissal to an employment tribunal (ET). Having reviewed the evidence, the ET found that the employer had genuinely believed that Dibble had committed an act of misconduct based on the CCTV footage available. As such they were satisfied that the employer had conducted a reasonable investigation and dismissed Dibble’s claim. This decision was appealed to the Employment Appeal Tribunal (EAT) who took issue with how the original tribunal had approached the case, describing its reasoning as ‘seriously deficient’. They believed that the employer had been unable to clearly establish a reason for a dismissal that fell within statutorily permissible reasons. The EAT also criticised the evidence used to justify the dismissal, as despite basing the dismissal around the fact the till was £30 down, an electronic printout of the till actually revealed it to be £5 up on the evening in question. The original tribunal was adjudged to have erred in not taking this evidence into account before making their decision. Given that both the employer and the ET failed to take this important piece of evidence into account, the case was referred back down to another tribunal for further review. With this in mind, employers are reminded to ensure they consider all of the available evidence before making a decision to dismiss. If there is any evidence that casts doubt on the events, as there was in this instance, employers may face claims of unfair dismissal if they cannot prove that they acted in a reasonable manner in dismissing the employee.

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