Celebi v Compass UKEAT 2010 0032 The Claimant was employed as a Chef Manager at a Sixth Form College. As part of her duty she collected £3,400 in cash to go to the bank. The bank reported that £400 and not £3,400 had been received. The Claimant was advised formally about the Respondent's concern, by a telephone call, and a subsequent letter of suspension which said that an investigation was to be conducted into "serious allegations: Loss of £3,000 cash banking/inaccuracy in banking". Once the investigation had been concluded Amy Smith the operational manager invited the Claimant to a disciplinary hearing saying: "Having considered the matter fully I can confirm you are required to attend a disciplinary hearing for the following reasons, incorrect reporting of stock figures, following of financial procedures and discrepancies in banking." She was told this could lead to her dismissal. There were a number of delays in convening the hearing and in an important piece of communication pertaining to these delays the Claimant stated "I would thereafter see no reason why I would unable to attend the hearing as the whole matter itself is very distressing as basically it appears that I am being accused of theft of £3000." At the conclusion of the disciplinary procedure, Amy Smith decided that the Claimant should be dismissed. The letter of dismissal said that that she had dismissed the Claimant under the company's disciplinary procedure for "Incorrect reporting of stock figures. Failure to follow the company financial procedures. Discrepancy in banking during September and October 2006." Whilst giving evidence to the tribunal Amy Smith, the decision maker, asserted on 6 occasions that the reason for dismissal was her belief that the Claimant had stolen £3,000. Nevertheless the tribunal in its findings used the neutral phraseology "the missing £3,000" and not theft. This was also the expression used in the Respondent's ET3. In so doing the tribunal was able to find "that the reason for dismissal was the Respondent's genuine belief that the Claimant had been guilty of misconduct, specifically that the Claimant was responsible for the loss of £3,000." On appeal the EAT disagreed holding that the Tribunal should have accepted the sole live evidence of Miss Smith as to the reason for dismissal and therefore decided that the proper reason for dismissal was a genuine belief by her that the Claimant had committed theft of £3,000. That being so, the Tribunal was not entitled to adopt the softer neutral approach, which had been set out in the letters and in the ET3. The fact that the Claimant in correspondence seemed to know that she was 'in fact' being accused of theft was not something that could be relied upon and this reference to theft was the Respondent's opportunity to clarify the charge. The case of Strouthos v London Underground [2004] IRLR 636 CA was apt as being a case where a specific allegation of dishonesty was not put to the employee. As it is a fundamental right that someone who is being accused of dishonesty should have that point made to them that person's dismissal was found to be unfair. The same principal applied here. As the reason for dismissal under section 98 (1) and (2) was theft and not that wrongly found by the tribunal the dismissal was also procedurally unfair in that an elementary step in the procedure relating to section 98(4) was not complied with; namely alerting the Claimant to the charge of dishonesty which she faced which the manager had in mind. As the case fell under the old statutory dismissal procedures the dismissal was also automatically unfair because the step 1 letter did not tell the employee that she was at risk of dismissal for theft. And so the moral of the story for employers - say what you mean. The use of euphemisms or attempts to dilute a charge to save the employee's feelings will be doomed to failure when set against a person's fundamental right to know what charge precisely that they are facing.
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