An employer's allegations must be spelled out. Euphemistic speech is not acceptable when disciplining or dismissing workersCelebi v Scolarest Compass Group UK & Ireland Ltd [2010] UKEAT 0032_10_2807 | |||
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24/09/2010
The employer believed that the employee had stolen £3,000 but only mentioned a 'loss' having occurred. The employee was dismissed because of the 'loss' and claimed unfair dismissal. Strouthos v LUL was applied by the EAT which set aside the finding of fair dismissal. JUDGE McMULLEN QC of the EAT decided that section 98(4) had not been complied with as regards alerting the Claimant that she faced a charge of dishonesty (as opposed to negligence). When the Claimant (who seemed to be aware of the true nature of the allegations) wrote to the Respondent, he did not clarify the situation. The EAT did not accept the argument of the respondent's barrister Mr Daniel Barnett who argued that the neutrally worded loss of the money meant the Claimant had not been dismissed for theft. The decision to overturn the ET judgment rested on Strouthos v London Underground [2004] IRLR 636 CA where an allegation of dishonesty was not put to the employee and the dismissal was held to be unfair (where an employee knows the substance of the allegations the procedure will normally held to be fair ( Spink and Fuller in Strouthos and Clarke v Trimico [1993] IRLR 148). The legal principle rested on that of Pill LJ in Strouthos who said: "12. It is a basic proposition, whether in criminal or disciplinary proceedings, that the charge against the defendant or the employee facing dismissal should be precisely framed." The EAT stressed that a defendant or employee can only be judged and found guilty of an offence that is put to him. Wood J in Spink v Express Foods Limited [1990] IRLR 320 was referred to whereby: "It is a fundamental part of a fair disciplinary procedure that an employee know the case against him. Fairness requires that someone accused should know the case to be met; should hear or be told the important parts of the evidence in support of that case; should have an opportunity to criticise or dispute that evidence and to adduce his own evidence and argue his case."The EAT case of Fuller v Lloyds Bank PLC [1991] IRLR 336 was quoted similarly. Bentley Engineering Company Limited v Mistry [1978] IRLR 436 quoted as to there being no particular procedure to be followed, it being a question of degree. The EAT has remitted the case back to the tribunal for consideration of an award. It will need to consider whether to reduce any award for contributory fault or on the grounds of Polkey. |
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| The transcript of this case follows:- Celebi v Scolarest Compass Group UK & Ireland Ltd | |||
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