Celebi -v- Scolarest Compass Group UK & Ireland Limited is a decision of the Employment Appeal Tribunal which emphasises the importance for employers of ensuring that they use the right terminology when taking disciplinary action against employees. The case is also a good example of how an apparently straightforward dismissal can keep an employer occupied for years because the relevant events took place in November 2006 and Mrs Celebi was dismissed in May 2007. The case went to the Employment Appeal Tribunal in 2008 when the issues mainly concerned technical matters relating to the procedures in the Employment Act 2002 (which no longer apply) and a rehearing was ordered. That took place and the resulting decision led to the appeal which took place last year. I’m commenting on it now, first because the case demonstrates how employment cases can become very protracted and expensive and, second, because of the warning that it provides to employers who think they have acted correctly but who happen to use the wrong words at the wrong time can undermine what was otherwise an apparently fair process.
Mrs Celebi was a chef manager at a college. On 14 November 2006 she collected £3,400 in cash. She completed paperwork confirming this when the money was sent to the bank but only £400 was received. As a result of this she was suspended.
She was sent a letter which identified the basis of the investigation as “serious allegations: Loss of £3,000 cash banking/inaccuracy in banking”. She was called to a hearing to consider allegations of incorrect reporting of stock figures, failing to follow financial procedures and discrepancies in banking. Her dismissal in May 2007 cited the same reasons.
Her initial claim for unfair dismissal was dismissed but her appeal succeeded in 2008 so that the case was remitted to a new tribunal hearing. The “second tribunal” again found that the dismissal was fair, not least because Scolarest had found, after a reasonable investigation, that she had been responsible for the loss of the £3,000. The person who dismissed her said in her evidence (on more than one occasion) that she believed that Mrs Celebi had stolen the money.
So how did Mrs Celebi succeed on her appeal? Judge McMullen considered numerous cases including the well known decision in British Home Stores -v- Burchell (was there a genuine belief, on reasonable grounds and after a reasonable investigation, of the guilt of the employee concerned) and Strouthos -v- London Underground (a charge against an employee facing dismissal must be “precisely framed”). He also considered Spink -v- Express Foods in which it was held that it is “a fundamental part of a fair disciplinary procedure” that an employee can only be disciplined in respect of a charge that has been put to them. Although it might readily be implied that the employer’s position was that the money had been stolen, on the evidence, that was never directly put to Mrs Celebi. The tribunal was wrong because it concluded that the dismissal was attributable to theft. The letter requiring Mrs Celebi to attend a disciplinary hearing did not expressly state this and it was held that she might have responded differently to an allegation of negligence rather than theft.
The result is that the dismissal was unfair and another tribunal was required to consider the question of remedy. However, Judge McMullen pointed out that the tribunal might wish to consider the effect of Polkey -v- A E Dayton Services (reduction or elimination of a compensatory award on the basis that, had correct procedures been followed, the employee would have been fairly dismissed). That is unlikely to provide any comfort to the employer given the history of the matter and their employment of solicitors and leading barrister Daniel Barnett to represent them for the second appeal.
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