Mr D Baker v Principal Building Products Ltd: 1805806/2020
EMPLOYMENT TRIBUNALS
Case No 1805806/2020
Between
Mr D BakerClaimantPrincipal Building Products LtdRespondent
Before
Employment Judge TegerdineMs Brennan (instructed by Solicitor) for claimantMr Webster (instructed by Counsel) for respondentDate 8 March 2021
JUDGMENT
[1]The claimant was unfairly dismissed by the respondent.[2]A 75% reduction in the basic award will be made pursuant to section 122(2) of the Employment Rights Act 1996.[3]A 75% reduction in the compensatory award will be made pursuant to section 123(6) of the Employment Rights Act 1996.[4]A 75% reduction in the compensatory award will be made under the principles in Polkey v A E Dayton Service Limited 1988 ICR 142.[5]The Tribunal will decide the remedy for unfair dismissal at a further hearing.
REASONS
[1]After hearing evidence and receiving submissions from the claimant and the respondent’s representative, the Tribunal reserved judgment. The Tribunal now gives its reasons for the judgment that has been reached.
Introduction
[2]In a claim form presented to the Tribunal on 1 October 2020, the claimant brings a complaint of unfair dismissal. This is a statutory complaint brought under the Employment Rights Act 1996.[3]The Tribunal heard evidence from the claimant. The respondent called evidence from Mr David Riley, former General Manager, Mr Stuart Riley, Managing Director, and Tim Barton, Warehouseman.[4]The Tribunal shall firstly make its findings of fact. A summary of the relevant law will be then set out. The factual findings will be applied to the relevant law in order to determine the issues in the case. Findings of fact
Background
[5]The claimant was employed by the respondent as a Warehouse Manager. The claimant was initially employed as a driver, and his service began on 5 June 2002. The claimant’s employment ended on 15 July 2020, when he was dismissed for gross misconduct. Alleged acts of gross misconduct[6]The respondent’s case is that Tim Barton first raised the allegations which ultimately led to the claimant’s dismissal. Mr Barton has worked for the respondent since 1992. Mr Barton was employed as the respondent’s Warehouse Manager for many years, but was demoted to Warehouseman in 2016.[7]The two central allegations against the claimant related to the theft of cash by the claimant following cash sales which the respondent claims took place on 1 June 2020 (the “1 June allegation”) and 17 June 2020 (the “17 June allegation”). The respondent’s case is that the proceeds of certain sales which took place on those dates were given to the claimant to put into the cash tin (commonly referred to by the respondent’s employees as “the wiggy”), but the claimant stole the cash. The claimant’s case is that the alleged sales never happened at all.[8]The background to the 1 June allegation is set out at paragraph 5 of Mr Barton’s witness statement: “On 1 June 2020, I served a customer who purchased two products; 100 large aggregate bags which were £2.50 each (total, £250) and 100 clear plastic bags (total, £12). I received a cash total of £262. Immediately after the sale, I went to the warehouse office where the claimant was working and notified the claimant of the items sold and the amount paid. I passed the money to the claimant, to allow him to record the sale and place the cash in the cash tin.”[9]The “cash register” was a handwritten record of cash being put into, and taken out of the cash tin, and was kept with the cash tin.[10]At paragraph 6 of Mr Barton’s witness statement Mr Barton continues to describe his version of the events of 1 June 2020: “Later that day, I was talking to my colleague, Mr Harrison (Warehouse Operative), and I asked him if he could check that the £262 cash sale had been accounted for in the sales register and cash tin. The reason I asked Wayne to check the tin and the register was because I had noticed the claimant acting strangely; I had seen that he was continually counting the money in the tin and keeping the tin under his desk instead of putting it back in the safe. I had also seen money under the claimant’s desk jotter on previous occasions and found this odd. On one occasion a few weeks earlier, I walked into the office and the claimant was counting the money from the tin. He said the notes had fallen out but not the coins. I had thought it was an odd comment for him to explain himself in this way”.[11]In his oral evidence Mr Barton stated: “He seemed to count the money a lot of times”.[12]In the claimant’s oral evidence the claimant stated: “I haven’t checked that tin since mid-May. We were really extremely busy. The claim that he saw me pick money off the floor – I don’t know anything about that.”[13]At paragraph 7 of Mr Barton’s witness statement Mr Barton describes his account of what happened next: “The following day, Wayne told me that he had checked the cash tin and register and had found no record of the sale of 100 large aggregate bags (£250). Wayne did, however, confirm there was a new entry for a sale of 100 clear plastic bags (£12). Wayne informed me that he had counted the money in the cash tin, and it matched exactly with the balance written down; consequently, £250 cash had yet to be added to the tin”.[14]At paragraphs 8 & 9 of Mr Barton’s witness statement Mr Barton states that Mr Harrison, who had a key to the cash tin, kept checking the cash tin over the next week or so, and noticed some anomalies in relation to the amount of cash in the tin, compared with the figures which were recorded on the cash register.[15]At paragraph 9 of Mr Barton’s witness statement Mr Barton states: “Given the seriousness of the issue, I was reluctant to report my suspicions about a colleague, who I considered to be a friend, but I eventually plucked up the courage to speak to Stuart and spoke with him on 16 June 2020”.[16]Mr Barton and Stuart Riley, the respondent’s Managing Director, gave evidence that Mr Barton approached Stuart Riley on 16 June 2020 to inform him that he had concerns about the claimant’s handling of cash, as he believed that the claimant was not fully or properly recording cash sales. In his oral evidence Stuart Riley said that Mr Burton told him: “I think you may have a problem and I feel awkward about telling you”. Paragraph 10 of Mr Barton’s witness statement states that Mr Barton “felt very uncomfortable about the matter” as he “considered the claimant to be a friend”.[17]At paragraph 11 of Mr Barton’s witness statement Mr Barton states that he told Stuart Riley that a cash customer would be attending site on 17 June 2020 to purchase 50 hessian sandbags. Mr Barton states that Stuart Riley instructed him to treat the sale in the usual way and hand over the cash to the claimant for recording and storage.[18]The second central allegation against the claimant was the 17 June allegation. At paragraph 12 of Mr Barton’s witness statement Mr Barton describes what happened on 17 June 2020: “On 17 June 2020, I am aware that there were two separate cash paying customers, one dealt with by me and one by the claimant. One purchase was for 40 plastic beads which the claimant instructed me to get out of stock and hand to the customer, which came to £80, the other sale was for the 50 hessian sandbags referred to above, that came to £20. I dealt with the £20 sale and the £80 sale was dealt with by the claimant. I gave the claimant £20 and I asked him to record it and place the cash in the cash tin as usual. As I left the office, I heard the claimant ask the customer for £80. I noted down the amounts of the sales on a post it note and passed it to Stuart.”[19]At paragraph 13 of Mr Barton’s witness statement Mr Barton continues: “later that day I asked Wayne to check to see if the cash had been placed in the cash tin and recorded on the cash register. There was no record of the sale. I continued to keep an eye on the claimant and later that day, I saw £100 cash underneath a notepad on the claimant’s desk. It remained there for at least another day”. At paragraph 14 of Mr Barton’s witness statement Mr Barton states: “by Friday 19 June 2020, the £100 that I had seen on the claimant’s desk was no longer there”.[20]Mr Harrison did not give evidence at the hearing, however he did provide a statement for the purposes of the respondent’s internal investigation, which is document 17 in the bundle of documents.[21]Mr Harrison’s statement states that Mr Barton told Mr Harrison that he had completed a cash sale for £262 on 1 June 2020 and given the cash to the claimant to put into the cash tin. Mr Harrison’s statement also states that Mr Harrison checked the cash tin and found no record of the £250, £250 of the £262 cash sale went missing, and that Mr Harrison checked the cash tin and cash register on subsequent days and discovered further anomalies. Mr Harrison’s statement which was produced during the course of the respondent’s investigation into the allegations against the claimant is consistent with the evidence Mr Barton gave at the hearing.[22]Stuart Riley states at paragraph 12 of his witness statement: “On the next day (17 June 2020) Mr Barton made me aware of £100 received for cash sales (this was the £20 sale referred to above, plus another cash sale of £80 of plastic bead to another customer). The details of the £20 sale, dealt with by Tim, along with the cash had been handed up to the claimant. Tim passed me a post it note with the details of both sales. On checking the sales log, there was no record of these sales taking place, however I found £100 underneath a jotter pad on the claimant’s desk.”[23]In his oral evidence Stuart Riley said that he found £100 in cash under the claimant’s jotter pad after he went looking for it when he realised £100 had gone missing. Stuart Riley said that the £100 was still there two days later, but then disappeared.[24]At paragraph 13 of Mr Barton’s witness statement Mr Barton states that on 17 June 2020 he saw £100 cash underneath a notepad on the claimant’s desk. In his oral evidence Mr Barton explained that he had seen cash under the claimant’s jotter pad before and had been keeping an eye on the claimant, so had taken it upon himself to look under the notepad when the claimant wasn’t around.[25]The claimant declined to answer questions about the allegation that there had been £100 cash under his jotter at the both the disciplinary hearing and appeal hearing. In his oral evidence at the hearing the claimant stated: “I don’t know anything about money being put under my jotter”, however the claimant also said in his oral evidence that he had sometimes put money under his jotter as Stuart Riley had told him to put cash under the jotter rather than leaving it on the side if a customer came in, so the customer didn’t see it.[26]The respondent did not produce the post-it note which Mr Barton claims he gave to Stuart Riley after the sales on 17 June (document 48 in the bundle) at the subsequent disciplinary hearing or appeal hearing. In his oral evidence Stuart Riley said about the note: “I forgot about it completely and discovered it several weeks later.” Stuart Riley also said: “I found it in a coat pocket. I was almost going to throw it away.”[27]At paragraph 29 of the claimant’s witness statement the claimant states: “When I received the post it as disclosure from the Respondent I recognised the handwriting as Mr Harrison’s rather than Mr Barton’s and I do not therefore accept that the post it was written by Tim at the time of the alleged sale”.[28]At paragraphs 13 and 14 of Stuart Riley’s witness statement, Stuart Riley states that he monitored the cash tin and the cash register for the next few days following the transactions on 17 June 2020, and noticed significant discrepancies between the sums which were in the tin and the sales which were being recorded in the cash register. At paragraph 13 of Stuart Riley’s witness statement Stuart Riley states: “On checking the total in the safe, it became clear that the amount of money kept rising but sales were not being recorded”.[29]Stuart Riley’s evidence was that at this stage he decided that a formal investigation was needed, so he referred the matter to his brother David Riley, who was the respondent’s General Manager at the time.[30]In his oral evidence Stuart Riley stated that the document which is at page 20 of the bundle was the page of the cash register which was being used with the cash tin on the date of the claimant’s suspension. The Tribunal will refer to this document as “document 20”.[31]In his oral evidence David Riley explained that document 20 was the relevant page of the cash register, as “it was the only one in the tin” and “there was no other document for me to look at”. Stuart Riley said in his evidence: “It’s on old stock sheet; it’s a piece of A4 lined paper.” and “as that sheet was being monitored it was being added to, so we knew it was being used.”[32]Document 20 has the words “stock check sheet” pre-printed on the top left of the page, the words “Principal Building Products” pre-printed in the top centre of the page, and the words “September 2019” pre-printed on the top right of the page. There is a pre-printed table underneath, which is comprised of three columns. The table has been completed by hand, and includes brief details of individual transactions in the left column, the relevant amount of each transaction in the middle column, and a running total/balance in the right column.[33]The claimant does not accept that document 20 was the page of the cash register that was being used with the cash tin on 1 June or 17 June 2020, because it has the words “September 2019” pre-printed on the top right corner of the page.[34]In a document the claimant submitted for the appeal hearing (document 36 in the bundle) the claimant stated: “a copy of a page from the cash sale register was included as evidence. This page is dated September 2019. It is unclear why you have included this particular page as it has no relevance to the periods under consideration”. In his oral evidence the claimant stated: “They have used an old sheet. I don’t know why – to find evidence against me I presume. I believe they just found a sheet with 100 bags on. It says the date at the top – I don’t believe that’s from June.”[35]Unfortunately document 20 has no dates on it other than “September 2019” which is pre-printed the top of the page. Document 20 does not include the names of the people who were putting cash into the cash tin or taking it out, clear details of where the cash which was put into the tin had come from, clear details of what cash which was being taken out of the cash tin was being taken out for, or the dates on which the individual transactions occurred.[36]In his oral evidence Mr Barton said that the claimant dealt with cash sales well over 90% of the time. Mr Barton explained that this was because the claimant was based in the warehouse office which was adjacent to the entrance to the warehouse, so when customers called in, the claimant was usually the first person they saw.[37]At paragraph 4 of Mr Barton’s witness statement Mr Barton states that if he dealt with a cash sale, he would usually give the cash to the claimant to put in the cash tin. Mr Barton’s oral evidence was that he asked the claimant to put cash in the cash tin because the claimant was the Warehouse Manager and was in charge of the cash tin.[38]Mr Barton stated in his oral evidence that if the claimant was not in the warehouse office he would have to go and find him, or another keyholder if the claimant was off site, so he could get the keys in order to put the cash in the cash tin. Mr Barton stated in his oral evidence that the claimant normally kept his key to the cash tin on his person, and that in practice Mr Barton never asked anyone other than the claimant for the key to the cash tin.[39]During the disciplinary hearing, the claimant stated that he “couldn’t recall” the sales which were alleged to have taken place on 1 June and 17 June 2020 (disciplinary hearing minutes - document 28 in the bundle). The statement the claimant submitted at the disciplinary hearing stated: “Tim would normally put money in it (the cash tin) himself, as per normal practice”. During the appeal hearing the claimant stated that he “can’t remember being given any money for this sale (on 17 June 2020)”.[40]However, the claimant’s recollection of events appeared to have changed by the time of the hearing, as at paragraph 49 of the claimant’s witness statement the claimant states: “at no time had I ever been given money to place in the cash tin by another member of staff as they had access to the cash tin and register and would do so themselves”. In his oral evidence at the hearing the Claimant said: “That did not happen at all. He never handed me the money” and “no-one would have to give me any money. They did not ever give me money.”[41]There is no evidence in the minutes of the disciplinary hearing and appeal hearing that the claimant claimed during either of those hearings that nobody ever gave him cash to put in the cash tin, and this is not raised in either of the statements the claimant produced for the disciplinary hearing and appeal hearing.[42]In his oral evidence Mr Barton explained that the cash tin was usually kept in a locked safe in the Sales Office.[43]In his oral evidence Mr Barton said that there was a box under the claimant’s desk which had old order acknowledgements in it, and that the claimant had been keeping the cash tin in there instead of in the safe in the Sales Office.[44]It was not contested that there were three keys to the cash tin. The key holders were the claimant, Mr Harrison and there was a third key which Stuart Riley either had, or had access to.[45]In his oral evidence the claimant accepted that as Warehouse Manager it was his responsibility to look after the cash tin.[46]The claimant’s evidence in relation to the 1 June allegation and the 17 June allegation directly contradicts Mr Barton’s evidence.[47]The claimant’s case is that Mr Barton’s evidence about the 1 June allegation and 17 allegation is untrue and has been fabricated.[48]The claimant’s explanation for the evidence which was produced by the respondent at the disciplinary hearing, and the respondent’s decision to dismiss him on the basis of that evidence was that he had been “set up” by the respondent.[49]In the claimant’s ET1 (document 2 in the bundle of documents) the claimant alleges that 18 months before his dismissal he had lodged a grievance about Mr Harrison’s work rate, and after Mr Harrison was questioned about this Mr Harrison “threatened to burn my house and family down”. The claimant also states in his ET1 that he believes he was “set up by Stuart Riley his son in law Mr Harrison and his best friend Mr Barton”.[50]At paragraph 65 of the claimant’s witness statement the claimant reiterates his claim that the allegations against him were “fabricated”, and there had been collusion by the respondent. The claimant states: “the allegations against me were fabricated as a reason to dismiss me because I had previously raised a grievance against Mr Harrison regarding his work rate. He then threatened me saying he knew where I lived and that he would burn my house down. I informed Stuart Riley of this and he said he would have a word with Wayne. After this Wayne told me he would get me the sack one day. My grievance was not progressed by Stuart and he told me that he considered there was a lack of evidence when I asked the reason for this. Wayne is Stuart Riley’s son in law and Mr Barton is Wayne’s best friend who is unhappy that he was demoted and I took over his role of Manager. I believe they disliked me as a result and that they set me up so that I would be dismissed.”[51]The claimant did not produce any evidence at the hearing to support his assertion that Mr Barton was unhappy that Mr Barton was demoted and the claimant had taken over his role, or explain why he believed this was the case.[52]In his oral evidence Mr Barton confirmed that he had previously been the Warehouse Manager, but had changed role in 2016.[53]At paragraph 40 of Stuart Riley’s witness statement Mr Riley explains: “The claimant is also suggesting that Mr Barton has never been happy since he (the Claimant) took over his role. I refute this entirely. Mr Barton has struggled with the responsibility of being a manager for some time but the loss of his wife due to cancer made the position too much for him. When it was suggested to him that he could relinquish that responsibility but continue with the company as a Warehouseman with no loss of pay or benefits he was relieved and grateful – he remains so to this day.”[54]When the claimant was asked during cross-examination about the reasons why Mr Barton had taken a demotion, the claimant appeared to be unaware that Mr Barton had lost his wife. He claimant said: “no-one had mentioned Mr Barton’s wife”. The claimant said that he wasn’t surprised Mr Barton hasn’t taken the Warehouse Manager job after the claimant was dismissed, as Mr Barton was very ill when the claimant left and wouldn’t have wanted the stress of being a Warehouse Manager again.[55]The Tribunal found the following aspects of the claimant’s evidence to be unsatisfactory.[56]At paragraph 7 of the claimant’s witness statement the claimant states that he was told by David Riley that he could not ask for anyone from the respondent’s firm to accompany him to the disciplinary hearing. In his oral evidence David Riley strongly denied ever saying this, and the letter inviting the claimant to the disciplinary hearing (document 24 in the bundle) states that the claimant is entitled to be accompanied at the hearing by a work colleague or trade union representative.[57]According to the minutes of the disciplinary hearing (document 28 in the bundle), the claimant stated at the disciplinary hearing that he had been informed of his right to be accompanied, but had been instructed not to contact any members of staff, and therefore could not see how he could have arranged support. David Riley replied that he could have arranged it for him.[58]The letter inviting the claimant to the appeal hearing states: “We note your submission to the hearing in which you allege you were unable to call witnesses because the company denied you contact to any members of staff… Should you now wish to have any witnesses or possible witness statements to help your case, I will want to hear them. Please inform me if you wish to ask members of staff to provide statements or to appear as I would wish to facilitate this”.[59]The letter inviting the claimant to the appeal hearing also states that the claimant is entitled to be accompanied at the appeal hearing by a work colleague or a trade union representative, and if the claimant wishes to bring a colleague he should inform Stuart Riley, so he could arrange for the companion to have time off in order to attend, if necessary. However, when the claimant was asked at the appeal hearing whether he had been informed of his right to be accompanied by a colleague or trade union representative he again replied: “I was told I was not allowed.”[60]When the claimant was asked during cross-examination whether any misapprehension he may have had about whether he was allowed to be accompanied had been corrected by the appeal hearing, the claimant replied: “Yes, but I still in my head had it from my original conversation with David Riley that I should never ask anyone to come in.”[61]The Tribunal finds the claimant’s continued assertions that he believed he was not allowed to bring anyone with him to the disciplinary or appeal hearing in spite of documentary evidence which clearly shows that he was informed of his right to do so both orally and in writing to be implausible.[62]At paragraph 29 of the claimant’s witness statement the claimant states that: “it is my belief that the handwriting on Mr Harrison’s statement is Stuart Riley’s as it is handwriting I recognise as his and not as Wayne’s. I believe that Stuart Riley wrote Wayne’s statement and Wayne signed it”. However, when Stuart Riley was asked about this in examination-in-chief he said: “It’s frankly ridiculous. It’s nothing like my handwriting and I didn’t write it. I print everything.”[63]The claimant did not explain why he believed the handwriting on Mr Harrison’s statement was that or Stuart Riley, or produce any evidence to support his assertion that Mr Harrison’s statement had been written by Stuart Riley.[64]At paragraph 3 of the claimant’s witness statement the claimant refers to a disagreement he had with Stuart Riley on 19 June 2020 in relation to a delivery of stock. The claimant states that the error was not his, and when he informed Stuart Riley of this: “he shouted at me and made false allegations that I was bad at my job. He shouted the he was my boss and could sack me at any time before storming out of my office”. In the claimant’s oral evidence the claimant stated that he believed that incident was linked to the respondent’s decision to dismiss him. The claimant said: “I think they’re connected in some way. I get shouted at on Friday and on Tuesday I get suspended on made up statements. It’s got to be connected.” and “I believe Mr Harrison’s got a lot to do with it.”[65]There is no mention of the comments the claimant claims Stuart Riley made to him on 19 June 2020 in the minutes of the disciplinary hearing or appeal hearing. The alleged incident is also not mentioned anywhere in the lengthy statement the claimant produced at the disciplinary hearing (document 29 in the bundle) in which the claimant stated that: “I have always had an extremely good working relationship with Stuart Riley”, or in the statement the claimant produced at the appeal hearing.[66]In his oral evidence, Stuart Riley, who conducted the appeal hearing, stated that he said to the claimant at the appeal hearing: “You dispute that their statements are valid. I’m looking for a reason why they would lie.”. The claimant’s response was: “You’d have to ask them.”[67]When David Riley was asked during his oral evidence whether the claimant had alleged during the disciplinary hearing that Mr Harrison had made threats against him, or suggested that he had previously lodged a grievance against Mr Harrison, Mr Riley said that the claimant had not raised these issues. David Riley said that if the claimant had made such a serious allegation he believes he would have stopped the proceedings and investigated them.[68]During cross-examination the claimant accepted that he did not raise the disagreement he had had with Stuart Riley on 19 June 2020, the claimant’s belief that Mr Barton resented the fact that the claimant had “taken his job”, or the grievance which the claimant claims he had lodged against Mr Harrison and the subsequent threats during the disciplinary hearing.[69]In his oral evidence Stuart Riley said that the claimant never told him that he had been threatened by Mr Harrison, and he first became aware of the claimant’s allegations relating to alleged threats by Mr Harrison when he read the claimant’s ET1. Stuart Riley said in his oral evidence that if the claimant had ever alleged that Mr Harrison had made threats against claimant, he would have taken immediate action, and Mr Harrison would have been suspended on full pay while the matter was investigated.[70]In his oral evidence Mr Barton said that he was not aware of any grievance the claimant had lodged against Mr Harrison, or of any issues between the claimant and Mr Harrison, but if anything like that had happened he’d have known about it.[71]During the Tribunal hearing the claimant did not produce a copy of any written grievance relating to Mr Harrison, or any documentary or witness evidence to support his assertion that he had previously raised a grievance against Mr Harrison, or that Mr Harrison had made threats against him.[72]The claimant stated in his oral evidence that Stuart Riley was a good employer. However, when he was asked if he believed Stuart Riley was involved in fabricating allegations against him he said: “It looks like he is. I hope he isn’t – I really do.” The claimant reiterated his claim that the main culprit was Mr Harrison stating: “He heard me being reprimanded by Stuart Riley and thought that was his opportunity.”[73]The claimant had ample opportunity to tell the respondent about the threats he claims Mr Harrison made against him, the grudge the claimant claims Mr Barton had against him, and the incident the claimant claims occurred between himself and Stuart Riley on 19 June 2020, and the claimant was specifically asked by Stuart Riley at the appeal hearing why the witnesses who had made allegations against him would lie. However, the claimant’s allegations relating to these individuals are not mentioned anywhere in the minutes of the disciplinary hearing or appeal hearing, are not mentioned in the lengthy statement the claimant submitted at the disciplinary hearing (which, amongst other things, deals specifically with the allegations which had been by Mr Harrison), are not mentioned in the statement the claimant submitted at the appeal hearing, and were not raised by the claimant in any of the correspondence relating to the disciplinary hearing or appeal hearing. The claimant’s allegations relating to Mr Harrison, Mr Barton and Stuart Riley were not raised until the claimant submitted his unfair dismissal claim to the Tribunal.[74]The claimant’s recollection of whether Mr Barton had given him cash to put in the cash tin on 1 June and 17 June was inconsistent. At the disciplinary hearing the claimant said he could not recall the sales which were alleged to have taken place on 1 June and 17 June 2020, and at the appeal hearing the claimant said he couldn’t remember being given any money for the sale, however by the time of the Tribunal hearing the claimant was adamant that the sales never happened, and that Mr Barton never gave him money to put in the cash tin at all.[75]The claimant has produced no evidence of any kind to support his claims that he had lodged a grievance against Mr Harrison, that Mr Harrison had threatened him, that Stuart Riley, Mr Harrison and Mr Barton all had grudges against him, didn’t raise any of this at any point during the disciplinary process, and has produced no evidence to substantiate his assertion that they had formed a plan to “set him up”.[76]The Tribunal finds that the claimant’s assertions (that he believed he did not have the right to be accompanied at the appeal hearing even though he had been told several times both orally and in writing that he did, that the post-it note which Tim Burton gave to Stuart Riley was written by Mr Harrison and was not given to Stuart Riley by Mr Burton, that Mr Harrison’s statement was written by Stuart Riley, and that that claimant was “set-up” by several members of staff because of various grudges each of them held against the claimant) are far-fetched.[77]The Tribunal finds that the evidence of Mr Barton and Stuart Riley was plausible, consistent with the contemporaneous documentary evidence, and consistent with each other. However, the Tribunal found the claimant’s evidence to be most unsatisfactory for the reasons which have been set out. The Tribunal finds that Mr Barton and Stuart Riley’s evidence is reliable and the claimant’s evidence is wholly unreliable. The Tribunal therefore prefers Mr Barton and Stuart Riley’s account of the events in question to the claimant’s account, and the following findings are fact have been made on that basis.[78]The Tribunal finds that Mr Barton did not want the role of Warehouse Manager, did not have a grudge against the claimant, and had no reason to invent allegations against him. The Tribunal finds that Mr Harrison did not threaten to burn the claimant’s house down, that Mr Barton did not resent the claimant, and that Stuart Riley did not have a grudge against the claimant following a disagreement on 19 June 2020. The Tribunal finds that the claimant was not “set up” by the respondent.[79]The Tribunal finds that as the respondent’s Warehouse manager, it was the claimant’s responsibility to ensure that proper records were kept of cash coming in and out of the cash tin, however proper records were not kept.[80]The Tribunal finds that document 20 was the page from the cash register that was being used on 17 June 2020.[81]The Tribunal finds that the claimant had sometimes kept the cash tin under his desk, and had sometimes kept money under his desk jotter.[82]The Tribunal finds that Mr Barton did usually give the claimant cash to put into the cash tin following cash sales, and finds that Mr Barton gave the claimant £262 in cash following a cash sale on 1 June 2020.[83]The Tribunal finds that Mr Barton gave £20 in cash to the claimant on 17 June following a sale, and that the claimant dealt with an £80 cash sale on that date. The Tribunal finds that Mr Barton gave the proceeds of the £20 sale to the claimant to pay into the cash tin, but that there was no record of either sale in the cash register.[84]The Tribunal finds that the claimant dealt with the majority of cash sales, had £100 in cash underneath his notepad on his desk on 17 June 2020, and that between 17-22 June 2020 the sums in the cash tin fluctuated for no apparent reason and did not always match the figures on the cash register.[85]The Tribunal finds that £250 from a cash sale on 1 June 2020 which had been given to the claimant by Mr Barton to put into the cash tin, and £100 from cash sales on 17 June 2020 that was given to the claimant and which should have been put in the cash tin were not recorded in the cash register, and went missing.[86]The claimant has never provided any explanation for what happened to the cash from the relevant sales on 1 June and 17 June 2020, or provided any explanation for the fact that £100 in cash was seen under his desk jotter on 17 June. The claimant claims the sales simply didn’t happen, and that he was never given the cash to put in the cash tin.[87]The Tribunal has found that the claimant dealt with the majority of cash sales, was responsible for the cash tin, and had one of three keys to the tin. The Tribunal has found that the relevant sales on 1 June and 17 June did happen, a total of £350 was given to the claimant on those dates to put in the cash tin, the claimant did not record the relevant sales in the cash register, and £350 went missing. The Tribunal has found that £100 was seen under the claimant’s jotter pad following cash sales of £100 on 17 June 2020, which were not recorded in the cash register, the proceeds of which went missing. The Tribunal has also found that the claimant had been keeping the cash under his desk and was not set up by the respondent.[88]For these reasons the Tribunal finds that on the balance of probabilities the claimant stole £250 in cash from the respondent following a cash sale on 1 June 2020, and stole £100 in cash from the respondent following cash sales on 17 June 2020. The investigation, disciplinary process and decision to dismiss[89]On 23 June 2020 the claimant was suspended while the concerns which had been raised by Mr Barton were investigated. At paragraph 4 of the claimant’s witness statement the claimant states that before he was suspended: “David then stated that £100 was missing and that I was believed to have taken the money.”[90]David Riley carried out an investigation during which he took statements from Mr Barton, Mr Harrison, and another warehouse operative, Adam Kirk (documents 17- 19 in the bundle). David Riley also looked at the cash register and the alarm entry and exit recordings between 16 – 22 June 2020 (documents 20-21 in the bundle).[91]Mr Barton’s statement largely reflects what is in the witness statement he provided for the hearing.[92]Mr Harrison’s statement states that Mr Barton told Mr Harrison that he had completed a cash sale for £262 on 1 June 2020 and had given the cash to the claimant to put into the cash tin. Mr Harrison’s statement also states that he checked the cash tin and found no record of the £250, that £250 of the £262 cash sale went missing, and that he checked the cash tin and cash register on subsequent days and discovered further anomalies. Mr Harrison’s statement is largely consistent with the evidence Mr Barton gave at the hearing.[93]Adam Kirk’s statement states: “I served a builder a couple of weeks ago (can’t remember the exact date) for a roll of 1200 gauge DPM, he was charged £30. I gave Daz the cash the next day it wasn’t written down and the cash wasn’t there”. Adam Kirk’s statement alleges that he had witnessed the claimant taking phone calls from builders on his personal mobile phone which he thought was odd, and alleges that the claimant charged different prices to customers to the prices which staff in the respondent’s sales office had quoted to Adam.[94]David Riley produced a document called “investigation notes” which is document 16 in the bundle. The heading at the top of the investigation notes is “re: inaccurate recording of monies from warehouse cash sales and losses of monies from the cash safe”. The “findings” section in the investigation notes specifically refers to the 1 June allegation and 17 June allegation. The investigation notes also refer to Stuart Riley discovering an unexpected surplus of cash in the cash register over a number of days followed by an unexpected shortfall on other days, however David Riley did not obtain a witness statement from Stuart Riley.[95]The final two paragraphs of the investigation notes state that there is: “considerable concern raised about cash handling by Darren” and “of particular concern are two issues of under reporting by Darren in the records with monies subsequently not accounted for and as checked by Stuart Riley”. However, the investigation notes do not state that the claimant is alleged to have stolen any cash. When David Riley was asked during cross-examination where it states in the investigation notes that he believed the claimant had stolen money he replied: “If you’re asking me for a specific sentence saying I believe you stole money on 1st and 17th June it doesn’t say that.”[96]The letter inviting the claimant to the disciplinary hearing (document 14 in the bundle of documents) stated that the disciplinary hearing concerned “the accurate recording and collection of monies in the cash safe following cash sales from the warehouse”. David Riley’s investigation notes, the three statements, document 20, a copy of a print-out from the alarm entry and exit recordings, and a copy of the respondent’s disciplinary procedure were enclosed with the letter.[97]The disciplinary hearing was initially arranged for 1 July 2020. However, the claimant, who was suffering from stress, requested a postponement. The disciplinary hearing was postponed for this reason and took place on 14 July 2020. The disciplinary hearing was conducted by David Riley. The minutes of the disciplinary hearing are at document 28 in the bundle.[98]At paragraph 13 of the claimant’s witness statement the claimant states: “David Riley had informed me that he believed I had taken £100 from the cash tin but the letters I was sent did not refer to this. It was therefore unclear to me whether the allegation I was facing was one of theft, as had initially appeared to be the case when I was suspended, or of carrying out my role incorrectly and making errors in respect of the monies placed in the cash tin.”[99]In his oral evidence David Riley said that “the reason I was chairing the disciplinary hearing was for those two dates only”. David Riley also stated in his oral evidence that the disregarded Adam Kirk’s statement as he couldn’t corroborate it, however he still sent Adam Kirk’s statement to the claimant as he believed the claimant: “was entitled to everything I saw”. Mr Riley did not inform the claimant that Adam Kirk’s statement had effectively been excluded.[100]When it was suggested to David Riley that he expected the claimant to know that he wasn’t dealing with the other matters which were referred to in the investigation report, David Riley said “Yes, I know he knew. I think it as clear” and “I am convinced the claimant knew he was there to answer for the 1st and 17th”. When David Riley was asked during re-examination how he knew, he said that the claimant specifically referred to the 1 June allegation and 17 June allegation in the statement he produced at the disciplinary hearing.[101]At the start of the hearing, the claimant stated that he had prepared a defence statement, but did not feel well enough to read it out. The claimant handed his statement to David Riley, who said he would read it during the break.[102]During the disciplinary hearing David Riley asked the claimant about the 1 June allegation. David Riley told the claimant that he suspected that the £262 sale on 1 June may not have been accurately recorded, as Mr Harrison had checked the cash book for that day, only £12 had been recorded (there is a reference in document 20 to a transaction for “100 bags - £12”), and the cash in the tin did not contain the cash from the sale. David Riley told the claimant that he wanted to hear the claimant’s account of that. The claimant responded that he “did not recall” the sale, and that Mr Barton did not need to ask the claimant for the key to the cash tin, as Mr Barton knew where the key was.[103]David Riley also asked the claimant about the 17 June allegation when there had been two sales, one for £80 for plastic bags and one for £20 for hessian sacks. The claimant replied that he “did not recall” this.[104]David Riley told the claimant that Stuart Riley had found £100 underneath a pad on the claimant’s desk, there had been no record of the £100 sale, and the £100 was later added to the tin. The claimant replied that any keyholder could have moved the cash into the tin.[105]Paragraph 6 of the disciplinary hearing minutes states: “David Riley pressed the point that the money was under the pad, where it had been checked by Stuart Riley for a number of days when it then had disappeared.” According to the minutes, the claimant did not respond to this point, but stated that the people who accessed the cash tin were Wayne, Stuart, Tim, Dean and Adam Kirk.[106]In his oral evidence, David Riley said that the claimant refused to answer his questions during the disciplinary hearing, and kept referring back to his statement.[107]There was a break during the disciplinary hearing, during which David Riley read the statement the claimant had submitted at the start of the hearing.[108]The claimant’s statement is document 29 in the bundle. It is a lengthy document (15 pages long), however the key points which are raised in this document are: There were discrepancies with dates and amounts from the three statements collected from Mr Barton, Mr Harrison & Adam Kirk; The allegations did not contain sufficient detail in relation to date/times/customer names etc; Other employees and customers should have been interviewed; A number of employees had access to the cash box; No records were kept of when the cash box and register were checked; and The copy of the page from the cash register was from September 2019 and not from June 2020.[109]There is some disagreement about the length of the adjournment. The claimant claims in his witness statement that the adjournment was 15 minutes long, whereas David Riley states in his witness statement that it was 40 minutes long.[110]There is no record of the start, finish and break times in relation to the disciplinary hearing, and there is insufficient evidence for the Tribunal to make any finding on the length of the adjournment.[111]Paragraph 7 of the disciplinary hearing minutes states that when the hearing recommenced: “David Riley stated that during the recess he had carefully read through the statement but as it was especially long had gathered the salient points but would require more time to absorb the details”. In his oral evidence David Riley said that he read the statement fully, but: “couldn’t fully absorb all the details which weren’t relevant”. He also said: “I thought about adjourning but I didn’t do that.”[112]According to paragraph 10 of the minutes, David Riley then stated that: “the outcome of the hearing is that you will be dismissed from the company as there has been sufficient evidence to show that DB had committed the offences outlines on 1st and 17th June 2020”. It is not disputed that this was said, and the claimant was dismissed without notice for gross misconduct at the end of the hearing.[113]When David Riley was asked by the Tribunal whether he took the claimant’s length of service and clean disciplinary record into account when he decided what the outcome of the disciplinary hearing should be he said: “Hugely. This was a very difficult set of circumstances. Darren had been working with us for a considerable time”. However, he decided that dismissal was the appropriate sanction as the claimant’s position was one of trust, and for that reason he couldn’t see any other option.[114]The decision to terminate the claimant’s employment was confirmed in a letter dated 15 July 2020 (document 30 in the bundle of documents). The letter referred to “the accurate recording and collection of monies in to the cash safe following cash sales from the warehouse”.[115]David Riley states at paragraph 30 of his witness statement that: “it was considerably more likely than not that the claimant had stolen from the business on two occasions”; at paragraph 32 he states: “It was, and still is, my firm belief that the claimant stole money from the company”; and at paragraph 34 he states: “I believed there was sufficient evidence that the claimant had committed the acts of gross misconduct, by stealing money on 1 and 17 June 2020”.[116]The claimant appealed against the decision to dismiss him. The respondent sent a letter to the claimant on 21 July 2020 inviting the claimant to a disciplinary appeal hearing (document 33 in the bundle). The letter stated that: “The purpose of the hearing is to discuss the allegations concerning the accurate recording and collection of monies into the cash safe following cash sales from the warehouse”. The letter does not refer to any allegations of theft.[117]The appeal hearing was conducted by Stuart Riley on 29 July 2020. The minutes of the hearing are at document 35 in the bundle.[118]At the beginning of the hearing the claimant handed a document called “Notes for Disciplinary Appeal Hearing” to Stuart Riley. This document is document 36 in the bundle.[119]The Notes for Disciplinary Appeal Hearing reiterated many of the points which had been raised in the letter the claimant submitted at the disciplinary hearing. However this document also included the following additional points: The respondent had failed to investigate or address any of the concerns the claimant raised in the statement he provided at the disciplinary hearing on 14 July 2020; The respondent had repeatedly said that the claims made against the claimant were “accurate recording and collection of monies into the cash safe following cash sales from the warehouse”, however it was unclear to the claimant what this meant, and the allegations were unclear.[120]When Stuart Riley was asked during cross-examination about the claimant’s complaint that the allegations had not been set out fully, a point which was raised by the claimant in the statement he submitted at the hearing, his response was: “I was of the view and still am that Darren knew exactly why he was there, and there was no doubt about it.[121]When the claimant handed the statement to Stuart Riley Mr Riley said: “This is similar to your original letter. Exactly the same? I will need time to read through it thoroughly”.[122]According to the minutes of the appeal hearing, the claimant stated: “There is no evidence that a sale took place.” When Stuart Riley asked the claimant if he was saying Mr Barton’s statement was a lie, the claimant said: “Tim is saying he’s given me the money. I’m saying I haven’t had it.” The claimant also stated: “can’t remember begin given any money for this sale”. When Stuart Riley said: “The money was under your jotter” the claimant replied: “I can’t remember taking the sale”.[123]At 6:08pm there was an adjournment to allow Stuart Riley to read the statement which had been submitted by the Claimant. The meeting reconvened at 7:16pm.[124]When the hearing reconvened Stuart Riley stated: “I have considered everything including the original documents and the second document produced today and whether the decision was right on the balance of probabilities or not. I agree with the original decision”. The claimant’s appeal was unsuccessful.[125]The claimant started a new job on 3 August 2020 working for a different employer as a Warehouse Packer/Assistant on a lower salary.[126]The Tribunal finds that the reason for the claimant’s dismissal was theft, which is clear from David Riley’s evidence. The claimant was dismissed for stealing £250 in cash following a cash sale on 1 June 2020, and £100 in cash on 17 June 2020 following two cash sales of £80 and £20 on that day.
The relevant law
[127]The Tribunal now turns to the relevant law.[128]Employees who have been employed for the requisite period of time have the right not to be unfairly dismissed under section 94 of the Employment Rights Act 1996.[129]Section 98 of the Employment Rights Act deals with the fairness of dismissals. In order for a dismissal to be fair, the employer must show that is had a potentially fair reason for dismissal. If the respondent is able to show that it had a potentially fair reason for dismissal, the Tribunal must consider whether the respondent acted fairly or unfairly in dismissing the employee for that reason.[130]Misconduct is a potentially fair reason for dismissal. In order for a dismissal for misconduct to be fair: the employer must establish that misconduct was the real reason for the dismissal; and the Tribunal must find that the employer acted reasonably, in all the circumstances of the case, in treating misconduct as the reason for dismissing the employee.[131]In this case it was not disputed that the respondent dismissed the claimant on the grounds of misconduct.[132]Whether the claimant’s dismissal was fair or unfair depends on whether the respondent acted reasonably or unreasonably in dismissing the claimant on the grounds of misconduct. In deciding whether the employer acted reasonably or unreasonably, the Tribunal is required to take into account the matters which are set out in section 98(4) of the Employment Rights Act 1996.[133]It is well established law that the issue to be determined by the Tribunal is not whether the Tribunal would have acted differently, or whether it would have made the same decision as the employer. The Tribunal must consider the reasonableness of the employer’s conduct, and must not substitute its decision as to what was the right course to adopt for that of the employer (Iceland Frozen Foods Ltd v Jones 1982 IRLR 439 / Sainsbury’s Supermarket Ltd v Hitt 2003 IRLR 23).[134]In many cases there will be a range of reasonable responses to the employee’s conduct within with one employer might reasonably take one view, and another might quite reasonably take another. The function of the Tribunal is to determine whether in the particular circumstances of the case the decision to dismiss the employee fell within the range of reasonable responses which a reasonable employer might have adopted. This includes consideration of whether the dismissal was procedurally fair.[135]The leading case on reasonableness in relation to misconduct is BHS v Burchell [1980] ICR 303. The Tribunal must first decide whether the employer had a genuine belief in the employer’s guilt the time of the dismissal. If the employer did have a genuine belief in the employers’ guilt, the Tribunal must then decide whether the employer held that belief on reasonable grounds and after carrying out a reasonable investigation.[136]The Tribunal must decide whether the employer acted reasonably or unreasonably in relation to all aspects of the case, including the investigation, the grounds for the employer’s belief, the penalty imposed, and the procedure followed.[137]Should the Tribunal decide that the dismissal was unfair it shall go on to consider remedy.[138]Under section 118 of the Employment Rights Act 1996, where a Tribunal makes an award for compensation for unfair dismissal, it shall consist of a basic award and a compensatory award.[139]The basic award is calculated according to a formula set out in section 119 of the Employment Rights Act 1996 based on the claimant’s age, length of service and gross weekly pay. It is the same calculation as is used for calculating statutory redundancy pay.[140]If the Tribunal considers that any conduct of the claimant before the dismissal was such that it would be just and equitable to reduce the amount of the basic award to any extent, then the Tribunal shall reduce amount of the basic award accordingly (section 122(2) of the Employment Rights Act 1996).[141]Section 123 of the 1996 Act provides that the compensatory award shall be such amount as the Tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal, insofar as that loss is attributable to action taken by the employer.[142]Where the tribunal finds that the dismissal was to any extent caused or contributed to or by the action of the claimant, the tribunal shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding. (S.123(6) ERA).[143]Should the Tribunal find that the dismissal was procedurally unfair but, had a fair procedure been adopted, the employee would have been dismissed in any event, that is a matter which will affect the compensatory award (Polkey v A E Dayton Service Limited 1988 ICR 142). A Tribunal may award no compensation or make a percentage reduction in compensation (known as a “Polkey deduction”) to reflect the possibility that the employee may still have been dismissed.
Conclusions
[144]The Tribunal has reached the following conclusions based on the findings of fact set out above.[145]The Tribunal is satisfied that there was a potentially fair reason for the claimant’s dismissal of the claimant, which was misconduct. The Tribunal finds that the allegations against the claimant were not fabricated, and finds that the respondent (specifically David Riley and Stuart Riley) genuinely believed that the claimant was guilty of gross misconduct.[146]The Tribunal finds that the sanction of dismissal was within the range of reasonable responses in the circumstances, bearing in mind the seriousness of the misconduct, and that mitigating factors were taken into account by the respondent before the decision to dismiss the claimant was taken. However, the Tribunal finds that although the respondent carried out an investigation and the claimant was given the opportunity to put forward his version of events at a disciplinary hearing and appeal hearing, the respondent’s investigation was flawed for the following reasons.[147]The Tribunal finds that the respondent did not keep adequate records of its investigation. During the periods that Mr Harrison (initially) and Stuart Riley (later) were checking the cash tin and cash register between 1 June and 22 June 2020, they did not keep any records of when they checked the cash tin, how much cash was in the tin, or how much cash was recorded as being in the cash tin on the cash register. In addition, the statement which Mr Harrison produced for the purposes of the investigation did not state exactly when he had checked the tin, or how much money was in the tin/recorded on the cash register each time he checked it, and Stuart Riley did not provide a statement at all.[148]The allegations against the claimant were serious allegations, and if respondent had kept some contemporaneous written records of exactly how much cash was in the tin/recorded on the cash register and when, and/or provided clearer information about the checks that had been carried out to the claimant, this would have helped the claimant to fully understand the case against him, and made it easier for him to respond to the allegations and put forward his version of events.[149]The claimant was dismissed for theft in relation to the 1 June allegation and 17 June allegation, however this was not made clear to the claimant at time of the disciplinary hearing or appeal hearing. Whilst the investigation notes did refer to the 1 June incident and 17 June incident, a number of other allegations were also referred to in that document, and it does not explicitly refer to theft. Although the letter inviting the claimant to a disciplinary hearing, the investigation notes, and the dismissal letter refer to “accurate recording and collection of monies in to the cash safe”, at the end of the disciplinary hearing David Riley stated that the reason for dismissal was that “DB had committed the offences outlined on 1st and 17th June 2020”. As the allegations against the claimant were not clear, this made it more difficult for the claimant to respond to them.[150]The Tribunal also finds that David Riley did not give proper consideration to the statement the claimant submitted at the disciplinary hearing before he decided to dismiss the claimant. Even if, as David Riley suggests, the adjournment was 40 minutes long, the Tribunal finds that this would not have been enough time for Mr Riley to fully digest and consider the contents of the claimant’s statement. Furthermore, David Riley did not carry out any further investigation in respect of any of the points which had been raised in the claimant’s statement before he decided to dismiss the claimant.[151]The Tribunal finds that David Riley decided on the outcome of the disciplinary hearing without given proper consideration to the points which had been raised by the claimant in his statement, and without considering whether any further investigation was required, or carrying out any further investigation. Exactly how much further investigation was required would have been a matter for the respondent, however it may have included conducting further interviews with witnesses, and/or investigating the claimant’s allegation that the extract from the cash sale register was not the right extract.[152]The Tribunal finds that, taking into account the size and resources of the respondent, the dismissal was procedurally unfair because the procedure which was adopted by the respondent was not within the range of reasonable procedures in the following respects: The charges against the claimant were not framed accurately, so the claimant did not fully understand exactly which allegations the respondent was investigating, and the case he had to meet; A key aspect of the evidence against the claimant related to fluctuations and shortfalls of cash in the respondent’s cash tin between 1 – 22 June 2020. However, the respondent did not keep any records when it monitored the cash tin and cash register between 1 – 22 June 2020, or provide the claimant with clear details about exactly when the cash tin and register were checked, or how much cash was in the tin and recorded in the cash register each time it was checked; and The respondent failed to give proper consideration to the points which were raised by the claimant in the statement he submitted at the disciplinary hearing, and did not investigate any of the points which the claimant raised in that statement before it decided to dismiss the claimant.[153]The Tribunal finds that the procedure which was adopted by the respondent was not within the range of reasonable procedures for these reasons and that this was an unfair dismissal. The claimant’s unfair dismissal claim therefore succeeds.[154]The Tribunal must then consider whether any adjustment should be made to the claimant’s compensation on the grounds that if a fair process had been followed by the respondent in dealing with the claimant’s case, the claimant may have been fairly dismissed, in accordance with the principles in Polkey.[155]In this case the Tribunal finds that if the respondent had framed the charges against the claimant accurately, provided details of the cash tin checks and given proper consideration to the points which were raised in the statement the claimant submitted at the disciplinary hearing, there is a still a very substantial chance that it would have dismissed the claimant.[156]In making that assessment, the Tribunal has taken into account the claimant’s length of service, and the possibility that the claimant may have been more forthcoming at the disciplinary and appeal hearing if the respondent had framed the allegations against him accurately, provided the him with clear details of the cash tin checks which had been carried out, and investigated the points the claimant raised in his statement. However, the tribunal has also taken into account the seriousness of claimant’s misconduct, and the fact that he held a position which required the respondent to have trust in him.[157]The Tribunal finds that if a fair process had been followed there is a 75% chance that the claimant would still have been dismissed and that the dismissal would have been within the range of reasonable responses.[158]The Tribunal may also reduce the basic and compensatory awards for culpable conduct in the slightly different circumstances set out in sections 122(2) and 123(6) of the Employment Right Act 1996.[159]When considering whether to make a deduction to the basic or compensatory award, the Tribunal must first identify the conduct in question, second, decide whether that conduct was blameworthy, third (for the purposes of section 123(6)) consider whether the blameworthy conduct caused or contributed to the dismissal to any extent, and fourth, decide to what extent it is just and equitable for the award to be reduced.[160]The Tribunal has found that the claimant stole £250 in cash from the respondent following a cash sale on 1 June 2020, and stole £100 in cash from the respondent following cash sales on 17 June 2020. This conduct was clearly blameworthy and was the reason for the claimant’s dismissal. The tribunal therefore finds that the claimant’s conduct merits a substantial adjustment to both the basic and compensatory award.[161]The Tribunal finds that the basic and compensatory awards should be reduced by 75% to reflect the claimant’s culpability.