Employment Judge A M BuchananIn person for claimantMr M McFetrich - Solicitor for respondentDate 22 June 2016
JUDGMENT
[1]The claim for unfair dismissal is well founded and the claimant is entitled to a remedy.[2]There will be a reduction from any compensatory award of compensation of 25% to reflect the possibility that the claimant would have been fairly dismissed pursuant to the principles in Polkey –v- A E Dayton Services Limited 1988 ICR 142.[3]There will be an increase in any compensatory award of 8% pursuant to section 207A of the Trade Union and Labour Relations (Consolidation) Act 1992 to reflect the breach by the respondent of the ACAS Code of Practice on Disciplinary and Grievance Procedures 2015.[4]There will be a reduction from any basic award and compensatory award of compensation for unfair dismissal of 50% to reflect the culpable and blameworthy conduct of the claimant which contributed to her dismissal.[5]The respondent is ordered to pay to the claimant compensation for unfair dismissal in the sum of £6,288.08 forthwith. This sum includes an award pursuant to section 38 of the Employment Act 2002.[6]The Employment Tribunals (Recoupment of Benefits) Regulations 1996 do not apply to this award.[7]The respondent is ordered pursuant to Rule 75(1)(b) and Rule 76(4) of Schedule I to the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 to pay to the claimant the issue fee of £250.00 and the hearing fee of £950.00 paid by the claimant in relation to this claim.[8]The total sum payable by the respondent to the claimant is £7,488.08 and is payable forthwith.
REASONS
[1]By a claim form filed on 24 January 2016 the claimant brought proceedings against the respondent for unfair dismissal.[2]By a form of response filed on 23 February 2016 the respondent denied any liability to the claimant.[3]By a letter to the parties dated 26 January 2016, the Tribunal issued standard directions in this matter and listed the matter for hearing on 17 May 2016.[4]The parties subsequently asked for a two day hearing and 18 May 2016 was added as the second day of the hearing.[5]The matter came before me for a two day hearing. I completed the hearing late in the afternoon of 18 May 2016 and there was insufficient time to deliberate and announce a judgment. Accordingly this judgment is issued with full reasons in order to comply with rule 62(2) of Schedule 1 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. Witnesses[6]During the course of the hearing I heard from the following witnesses:- 6.1 Moira Amer (“MA”) – the owner of the respondent company and a director and shareholder in it. This witness was the dismissing officer and was also involved in the investigation which preceded the dismissal and the appeal which followed the dismissal.[7]I had a bundle of documents before me which was agreed and extended to some 347 pages. Any reference in this judgment to a page number is to the relevant page within that agreed bundle. In reaching my Judgment I made reference only to such documents from the agreed bundle as I was referred to during the course of the hearing. Factual issues[8]There were some factual issues for me to determine which I do in the course of the following findings of fact. In particular there were factual issues in respect of the words used by MA at the disciplinary hearing in relation to the outcome of the hearing, whether the claimant had had a contract of employment issued to her, whether a sum of £3000 advanced to the claimant in 2012 was a loan or a bonus and whether or not the claimant issued notebooks to the workforce to enable them to record their machinery work in them on a daily basis. Legal issues[9]Unfair dismissal claim9.1 Has the respondent proved what was the principal reason for the dismissal of the claimant? Did the dismissing officer have a genuine belief in the misconduct of the claimant?9.2 If so, were there reasonable grounds for that belief and in particular did the respondent act reasonably in treating the claimant’s conduct as being gross misconduct?9.3 If so, at the time of the decision to dismiss had the respondent carried out as much investigation as was reasonable in all the circumstances of the case.[10]Findings of fact Having assessed the oral evidence presented before me and having considered the documents to which I was referred and having in particular considered the way in which the oral evidence was given, I make the following findings of fact on the balance of probabilities:- 10.1 The business now carried on by the respondent company was started in 1986 by MA and two others. On 6 December 1993 the respondent company was incorporated and the business was transferred to it and has been run by it since that date. In October 2004 MA bought out the interests of the other two owners and from that date has owned the respondent company and the business it runs. The business of the respondent is the embroidery of logos and other details onto garments which are either supplied by the respondent to customers at their request or supplied by customers to the respondent for embroidery to be added. The respondent is a small business and at the material time for the purposes of these proceedings the business comprised of the claimant, who was in charge of the day to day management of the company, and MA who took a back seat in the administration of the business but who dealt with the banking of cash and other receipts and certain design matters. In addition there were three other employees who acted as machinists. The business of the respondent company broadly comes as to 20% from school clients (typically embroidering the school logo onto sweatshirts and the like), 60% from commercial clients and 20% from retail clients. The respondent company has no written policies or procedures and in particular no written disciplinary policy.[11]Submissions – the claimant The claimant made oral submissions which are briefly summarised as follows:- RESERVED JUDGMENT Case Number: 2500286/201611.1 The claimant began work in 1987 and never had any training. The claimant accepts that her recordkeeping was inadequate but she was doing what she had always been told to do.11.2 The claimant did issue notebooks to members of staff for them to record the work they were doing.11.3 It was unfair for MA to be the decision maker at both the disciplinary hearing and then the appeal hearing and that is why the claimant did not engage at the appeal hearing.11.4 It is clear from all correspondence that MA had predetermined that the claimant was to leave her employment and she said as much in e-mail correspondence with JH. JH stated that there were no grounds to dismiss but MA having predetermined that she was to be dismissed went ahead anyway having found what she unreasonably considered to be reasons to do so.11.5 Many of the documents provided to the Tribunal were not produced to the claimant during the course of the disciplinary process.11.6 The dismissal was unfair and predetermined.[12]Submissions – the respondent On behalf of the respondent Mr McFetrich made the following oral submissions which are briefly summarised:-12.1 The respondent’s witnesses were all transparently honest and clearly told the truth. MA did the best she could with the confusing documents.12.2 There were two main issues to consider, gross misconduct and incompetence. There were effectively two reasons for dismissal and both were equally important and both were made out. However if only one of them is made out then the claim of unfair dismissal should be dismissed. Only if both reasons fail should the claimant succeed.12.3 The respondent is a company with very small resources and it did the best investigation it reasonably could. The respondent took account of the ACAS Code of Practice and MA tried to get things right.12.4 The claimant was correctly suspended at the outset and no attack is made on that decision which was common practice.12.5 At no time did the claimant request other witnesses to be interviewed. The fact that customers were contacted by the claimant does not mean that MA was lying. The investigation by the company was thorough and reasonable. Advice was taken from the company accountant and representatives of the two schools were spoken to. In all the circumstances the investigation was reasonable. The invoices created by RESERVED JUDGMENT Case Number: 2500286/2016 the claimant are accepted as false. A false invoice is fraudulent and the claimant knew the invoices were false.12.6 The claimant did not engage with the respondent at the appeal hearing and that matter cannot be laid at the door of the respondent. It was conceded at pages 84-89 of the bundle were not before the claimant at the disciplinary hearing.12.7 The investigation carried out by JH was not binding on the respondent.12.8 It is clear that MA had not made up her mind before the end of the disciplinary hearing and that she approached the matter with an open mind. The claim of unfair dismissal should be dismissed. If the Tribunal finds that the dismissal was unfair then contributory fault by the claimant has been massive. It will be entirely unjust for the claimant to receive any compensation. The claimant accepted manufacturing four invoices to a very considerable sum and the respondent simply could not trust the claimant again. The claimant was dishonest and has not told the truth and her employment simply cannot be continued by the respondent.12.9 It was the claimant’s responsibility to issue contracts of employment but it cannot be denied that the claimant did not have a contract of employment but if the claimant is entitled to any award then the award under the 2002 Act should be for the lower amount and not the upper amount.12.10 The Tribunal’s concerns in respect of any illegality tainting the contract should not be pursued further.[13]The law13.1 I have reminded myself of the provisions of section 98 of the 1996 Act which read: “98(1) In determining for the purposes of this part whether the dismissal of an employee is fair or unfair it is for the employer to show –(a) the reason (or if more than one the principal reason) for the dismissal, and(b) that it is either a reason falling in subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (2) The reason falls within this subsection if it – (a) relates to the capability or qualifications of the employee for performing work of a kind which he was employed to do; (b) relates to the conduct of the employee … RESERVED JUDGMENT Case Number: 2500286/2016 (4) In any other case where the employer has fulfilled the requirements of subsection (1) the determination of the question whether the dismissal is fair or unfair (having regard to the reasons shown by the employer) – (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and (b) shall be determined in accordance with equity and the substantial merits of the case”.13.2 I have noted the decision in British Home Stores Limited v Burchell [1978] IRLR379 and reminded myself that it is for the respondent to establish that it had a genuine belief in the misconduct of the claimant at the time of the dismissal. In answering this question I note that the burden of proof lies with the respondent to establish that belief on the balance of probabilities. I remind myself that the other two limbs of the Burchell test, namely reasonable grounds on which to sustain that belief and the necessity for as much investigation into the matter as was reasonable in all the circumstances of the case at the stage at which the belief was formed, go to the question of reasonableness under section 98(4) of the 1996 Act and in relation to section 98(4) matters, the burden of proof is neutral. In considering the provisions of section 98(4), I must not substitute my views for those of the respondent but must judge those matters by reference to the objective standards of the hypothetical reasonable employer. I have noted the words of Mummery LJ in The Post Office-vFoley and HSBC Bank plc –v- Madden 2000 EWCA Civ 3030: “In one sense it is true that, if the application of that approach leads the members of the tribunal to conclude that the dismissal was unfair, they are in effect substituting their judgment for that of the employer. But that process must always be conducted by reference to the objective standards of the hypothetical reasonable employer which are imported by the statutory references to "reasonably or unreasonably" and not by reference to their own subjective views of what they would in fact have done as an employer in the same circumstances. In other words, although the members of the tribunal can substitute their decision for that of the employer, that decision must not be reached by a process of substituting themselves for the employer and forming an opinion of what they would have done had they been the employer, which they were not”.13.3 I have reminded myself of the decision in Sainsbury’s Supermarkets Limited v Hitt [2003] IRLR23 where the Court of Appeal made it plain that the range of reasonable responses test applies as much to the question of whether an investigation into suspected misconduct was reasonable in all the circumstances as it does to any other procedural and RESERVED JUDGMENT Case Number: 2500286/2016 substantive aspects of the decision to dismiss a person from his employment for misconduct reason.13.4 I have noted the decision of A v B [2003] IRLR405 in which the Employment Appeal Tribunal reminded tribunals that in determining whether an employer has carried out such investigation as was reasonable in all the circumstances, the relevant circumstances include the gravity of the charges and the potential effect upon the employee. I have noted the guidance of Elias J: “Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers. Of course, even in the most serious of cases, it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the inquiries should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him”.13.5 I have reminded myself of the decision of Taylor v OCS Group Limited [2006] IRLR613 and particularly noted the words of Smith L.J. at paragraph 47: “The error is avoided if ETs realise that their task is to apply the statutory test. In doing that they should consider the fairness of the whole of the disciplinary process. If they found that an early stage, the process was defective and unfair in some way they will want to examine any subsequent proceedings with particular care. Their purpose in so doing will not be to determine whether it amounted to a re-hearing or a review but to determine whether due to the fairness or unfairness of the procedures adopted the thoroughness or lack of it of the process and the open-mindedness (or not) of the decision maker the overall process was fair, notwithstanding any deficiencies at the early stage”.13.6 I reminded myself of the provisions of Section 123(6) of the 1996 Act – ‘Where the Tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the compensatory award by such proportionate as it considers just and equitable having regard to that finding’. I note that for a reduction from the compensatory award on account of contributory conduct to be appropriate, then three factors must be satisfied namely that the relevant action must be culpable or blameworthy, that it must have actually caused or contributed to the dismissal and it must be just and equitable to reduce the award by the proportion specified. The Tribunal must concentrate on the action of the claimant before dismissal because post dismissal conduct is irrelevant. I have noted the provisions of Section 122(2) of the 1996 Act and the basis for making deductions from the basic award.[14]Conclusions14.1 I have first considered whether the respondent has proved the reason for dismissal. In answering this question I must consider whether I am satisfied on the balance of probabilities that the respondent has shown that the dismissing officer (MA) had a genuine belief in the misconduct of the claimant.14.2 In this case the respondent advances two reasons for dismissal and asserts in the letter of 8 December 2015 that both independently justify dismissal. I must consider whether this is a case of the respondent advancing two reasons which alone could separately justify summary dismissal or whether the respondent regarded the charges as cumulative in the sense that both of them together formed the reason for dismissal. In the former case, I must consider whether the respondent has shown pursuant to section 98(1)(a) of the 1996 Act which was the principal reason for the dismissal. In the latter case, both reasons together form the reason for the dismissal and so it is not necessary to consider which of the two formed the principal reason for dismissal as together they form the only reason for dismissal.14.3 In the letter dated 8 December 2015 (page 292) the respondent states that misconduct relating to the two schools was so grave as to justify dismissal as was the conduct in relation to the way the affairs of the respondent company were conducted. Each of the two matters “was so important as to justify your dismissal” says the dismissal letter. Thus I must consider RESERVED JUDGMENT Case Number: 2500286/2016 each reason separately and apply the requirements of section 98(4) of the 1996 Act to each reason separately for the respondent asserts that each alone is sufficient to dismiss. I must also consider whether in that case the respondent has shown which was the principal reason for the dismissal of the claimant.14.4 In relation to the alleged misconduct in respect of the two schools, I am satisfied that MA and therefore the respondent genuinely believed that the claimant had failed to account for all the proceeds received from the work which had been carried out during 2015 (and indeed since the loss of the contract in 2014) in respect of supplying goods to parents of pupils of the two schools. Therefore the respondent has proved that reason. In fact, I am satisfied that MA had formed this view at a very early stage and certainly by the time she wrote her email to JH on 16 October 2015 (paragraph 10.17 above) and all that she did thereafter was directed to proving what she already believed. In acting in that way, MA lost her objectivity and so acted as no reasonable employer would act.14.5 In respect of matters to be considered pursuant to section 98(4) of the 1996 Act in relation to this reason, there was considerable confusion caused by the approach of MA in this matter. Time and again reference was made to the fact that work was being done for the two schools. In fact it was perfectly plain that that was not so. The contracts with the two schools were lost at or around Easter 2014 and there never was any suggestion that any work carried out thereafter by the respondent was work placed by either or both of the two schools. What happened was that the claimant used her discretion as manager of the respondent company to seek to effectively undercut the new official supplier of uniforms to the two schools and she did that by employing the services of an agent in Robson’s Stores. Accordingly the issue MA had was not that the claimant was carrying out work for the two schools but that she was carrying out work for parents of pupils at those two schools and had failed to account for the numerous articles which had been ordered by and supplied to those parents and paid for in cash. The failure of MA to make that clear also caused unreasonable confusion in all that followed.14.6 Whilst I am satisfied that MA held the genuine belief referred to at paragraph 14.4 above, I am not satisfied that she carried out a reasonable investigation into those matters or that she had reasonable grounds for that belief at the point of dismissal or that a reasonable procedure was followed. I deal with those matters together.14.7 The essential element of this allegation was that the claimant had failed to bank cash received in respect of the supply of goods to the parents of the pupils at the two schools from 2014 onwards but in particular during 2015 and in particular again for the work carried out in August and September 2015. The respondent did not produce any bank statements or show to the claimant the results of any reasonable investigation into the bank statements showing the amount of cash which was received into the bank accounts of the respondent compared to the amount of cash which the RESERVED JUDGMENT Case Number: 2500286/2016 respondent calculated should have been received. The reason for that failure no doubt was that the systems in place in the respondent company to evidence the receipt of cash were so inadequate as to make any investigation into such matters almost impossible. All that was obtained and made available to the claimant in this regard was a letter from the respondent’s accountant (page 170) wherein certain conclusions were drawn as to the shortfall of cash but no documentary evidence was produced to the claimant allowing her the opportunity to comment on those crucially important conclusions which had been drawn. No reasonable employer would have acted in that way and would have drawn the conclusions this respondent did in those circumstances.14.8 Any reasonable employer (having decided to carry on the investigation after the inconclusive report of JH) would have seen the claimant again in an investigatory meeting in accordance with paragraph 5 of the ACAS Code and put the matters of concern directly to the claimant. The matters alleged against the claimant in this regard were so serious as to make that a step that any reasonable employer would have taken. The ACAS Guide to the ACAS Code makes it plain in relation to investigating matters that the more serious the matter being investigated the more thorough the investigation should be and that “it is important to keep an open mind and look for evidence which supports the employee’s case as well as evidence against”. In this case the allegation of theft was extremely serious yet everything points to a hurried investigation by MA wherein she failed to keep an open mind and sought instead to set out to prove what she already believed to be the case. That resulted in the formulation of a disciplinary charge against the claimant which breached the requirements of paragraph 9 of the ACAS Code as it simply failed to contain sufficient information about the alleged misconduct to enable the claimant to prepare to answer the allegations against her. The claimant was left to trawl through 84 pages of documents in an attempt to understand what it was that was alleged against her. No reasonable employer would have acted in that way.14.9 Furthermore the procedure adopted in providing what information was given to the claimant was unreasonable. Documents were supplied to the claimant which were frankly incomprehensible. A detailed spreadsheet analysis of sums which allegedly had been received in cash (pages 84-88) was not at any time shown to the claimant prior to her dismissal and indeed even if it had been, its meaning was far from plain. The investigations into what were said to be missing garments evidenced at pages 205 and pages 230 and 231 were supplied but are frankly incomprehensible. Those and many other documents were sent to the claimant on 1 December 2015 in advance of the disciplinary hearing on 4 December 2015 and the claimant was told that the disciplinary hearing was to “discuss the issues set out in various copy documents which will be delivered to you today”. Those copy documents numbered some 84 pages but simply failed to set out in any understandable way what allegations it was that the claimant was facing. In acting in that way, the respondent acted as no reasonable employer would act in making allegations of the RESERVED JUDGMENT Case Number: 2500286/2016 utmost gravity against any employee - let alone an employee with 28 years service.14.10 Furthermore it is clear that the respondent through MA had reached a predetermined view that the claimant was to be dismissed and that led MA to reach her decision without conducting a reasonable investigation. I reach the conclusion that MA had predetermined the outcome in this matter because of the contents of her e-mail correspondence with JH as early as October 2015 (paragraph 10.17 above) and also when she simply disregarded the eminently reasonable conclusion reached by JH after a proper investigation to the effect that she could not evidence dishonesty by the claimant in the ordering of the uniforms and the cash associated with it. Whilst MA was entitled not to accept that conclusion, any reasonable employer would then move on to conduct an investigation which was substantively and procedurally reasonable in order to evidence reasonable grounds for the belief which had already been established in the mind of MA. For the reasons set out above MA failed in that regard.14.11 I do not lose sight of the size and administrative resources of the respondent. They are very small indeed. The fact that MA acted as investigating officer, disciplinary officer and appeal officer is not of itself unreasonable because of the size of the respondent company. However, with that conflation of roles comes a high danger of prejudgment and the application of a predetermined outcome. That is precisely what occurred in this case. It could have been avoided by bringing in an independent external person to conduct one or more of the three processes. In failing to do so the respondent did not act unreasonably provided it guarded against the inherent dangers in not doing so. Everything in this matter indicates that those dangers were not avoided and instead points to prejudgment and predetermination by MA weeks in advance of the disciplinary hearing on 4 December 2015. No reasonable employer would have acted in that way and that is sufficient in itself to render unfair the dismissal of the claimant for this reason.14.12 Accordingly I conclude that the respondent through MA did not have reasonable grounds for the genuine belief held by MA that the claimant had stolen the proceeds of sale of some of the items supplied to the parents of pupils at the two schools and neither had a reasonable investigation been carried out nor in any event had a reasonable procedure been followed. The ACAS Code was breached in respect of paragraph 5 and paragraph 9.14.13 I move on to consider the separate reason for dismissal advanced namely the mismanagement of the respondent company by the claimant. In this regard I note from the letter of dismissal that the matters relied on were the way in which the claimant allowed NJ to have work done in August 2015 without documentary record or evidence of payment, the fact that there were no proper systems in place to evidence the receipt of cash, that new and potential customers were not properly recorded within the RESERVED JUDGMENT Case Number: 2500286/2016 company books, that pricing systems were commercially suicidal and that false invoices were produced.14.14 I am satisfied that the respondent through MA held a genuine belief that those matters were established and that they related to the claimant’s conduct. However, as with the first reason advanced for dismissal, I am satisfied that MA had formed this view before the disciplinary hearing on 4 December 2015 and that she set out at that hearing to establish what she already believed. Again in acting in that way, MA lost her objectivity and so acted as no reasonable employer would act. I move on to consider the questions posed by section 98(4) of the 1996 Act in respect of this reason for dismissal.14.15 I am not satisfied that these matters were properly set out to the claimant in advance of the disciplinary hearing so that the claimant came to that hearing knowing the allegations she was to face. In point of fact it is quite clear that she did not know that she was facing such allegations at the disciplinary hearing on 4 December 2015 and those are not the actions of any reasonable employer. The papers produced to the claimant, whilst alluding to such matters, did not make it plain that those were allegations that she was facing and the information which was provided was not evidence of a reasonable investigation into such matters. A reasonable employer would have set out those allegations in a way that would have made it clear what allegations of mismanagement the claimant was to face. Instead in this case, the claimant was sent a muddled mass of papers extending to some 84 pages and told that she was to face a disciplinary hearing to “discuss the issues set out in various copy documents which will be delivered to you today”. This did not give the claimant sufficient information about the allegations of misconduct she was facing and breached paragraph 9 of the ACAS Code. No reasonable employer would have acted in that way.14.16 Furthermore in this regard also, I am satisfied that the respondent did not approach the hearing with an open mind. MA had determined that the claimant was to be dismissed and simply moved to dismissal with that predetermined intention without following a reasonable procedure. No reasonable employer would have so acted.14.17 In relation to the mismanagement allegations, it is clear that in the course of the disciplinary hearing, the claimant did accept some of the matters put to her. In particular she accepted fabricating the four invoices in order to balance the cash surplus evident in the company bank account at the end of June 2015. In addition the claimant accepted that the work done for the family and friends of NJ was not evidenced by paperwork and that the system for recording the receipt of cash was inadequate. However, she asserted that MA was aware of the practice she adopted to account for surplus cash and I accept that that was so. MA was involved in the management of the respondent company to a significant extent and her attempts to distance herself from those matters and seek to advance them as reasons to dismiss were not convincing and were not the actions of a RESERVED JUDGMENT Case Number: 2500286/2016 reasonable employer. In respect of the matters where the claimant was at fault, I conclude that the penalty of summary dismissal was not in any event within the band of a reasonable response given the undoubted knowledge of those practices by MA and her involvement in them.14.18 Accordingly I conclude that the requirements of section 98(4) of the 1996 Act were not met in respect of the second reason advanced for the dismissal of the claimant.14.19 Given that I reach the conclusion above in respect of the questions posed by section 98(4) of the 1996 Act in respect of both reasons advanced for dismissal, it is not strictly necessary to consider the question of whether the respondent has established which was the principal reason for dismissal in this case. There is no doubt that the respondent advanced the two reasons as individually justifying the dismissal of the claimant. That was made plain in the letter of 8 December 2015 and also in the submissions made to me by Mr McFetrich on behalf of the respondent. In those circumstances it is for the respondent to prove which was the principal reason for dismissal in accordance with section 98(1) of the 1996 Act. The respondent has failed to do so. It is not clear which of the two reasons put forward was the principal reason. In those circumstances the application for unfair dismissal succeeds without any necessity to consider the matters required to be considered under section 98(4) of the 1996 Act.14.20 Accordingly for the above mentioned reasons, the application for unfair dismissal is well-founded and the claimant is entitled to a remedy. Findings in respect of breach of the ACAS Code14.21 I have considered in detail the ACAS Code. Paragraph 5 requires that a respondent should carry out necessary investigations of potential disciplinary matters without delay. The period of investigation in this matter was excessive and did not involve any investigation meeting with the claimant once the initial investigation report had been rejected. Paragraph 9 requires that an employee should be notified of the disciplinary case to answer in writing and that that written information should be sufficient to inform the employee of the alleged misconduct or poor performance. I am not satisfied that the information provided to the claimant in this case gave her sufficient information to enable her to have full information about the alleged misconduct either in respect of the two schools or the mismanagement of the company and in particular I find a breach of paragraphs 5 and 9 established. I do not accept that there was a breach of paragraph 12 of the Code as asserted by the claimant in her letter of appeal against dismissal.14.22 I have considered the overall impact of those two breaches and I am satisfied that it is appropriate to increase any award of compensation due to the claimant by 8%. The claimant did have a disciplinary hearing and was offered an appeal and therefore the breach of the code was not a RESERVED JUDGMENT Case Number: 2500286/2016 complete breach and I consider that an increase of 8% is appropriate to reflect the breaches of the Code which occurred in this case. Findings in respect of a Polkey deduction14.23 I consider that the absence of information about cash receipts into the business from June to October 2015 in relation to the allegation of dishonesty in relation to the two schools is such as to mean that I could not attempt to speculate what the outcome would have been if the claimant had had a proper opportunity to explain the entries in the bank statements and the receipts of cash from June 2015 onwards. I note in particular that the claimant did at the end of June 2015 attempt to raise invoices (in a thoroughly improper way – a point to which I shall return below) to reconcile the cash received at that time and I am not satisfied that the claimant would not have carried out that same procedure at the end of September/October had she had the opportunity to do so. I consider that to speculate as to whether or not the claimant would have been dismissed in respect of the allegations of dishonesty is too difficult to admit of any sensible conclusion.14.24 However in relation to the allegations of mismanagement of the company, I am prepared to assess the percentage chance of a fair dismissal taking place for those reasons. I take account of the fact that the claimant admitted that she had created false invoices in order to account for cash receipts of some £3,700 at the end of June 2015 and that this was something she evidently thought was a proper discharge of her senior responsibilities in this company. Furthermore there is evidence that the claimant allowed NJ to carry out work for her family and friends again with no proper documentary record or evidence of payment to the company. There is evidence that the claimant also carried out a charging policy in respect of certain customers which was not commercial to say the least. Had those matters been properly put to the claimant and had she had an opportunity properly to explain them, then I consider, having assessed her evidence to me at the Tribunal, that there is a chance that she would have faced a fair dismissal for those reasons and that that dismissal would have been without notice. I conclude that the chance of a fair dismissal is 25% and I will therefore make that deduction from remedy to reflect that possibility. Had MA not been aware of those practices, I would have concluded that the chance was higher than that but, given the knowledge of MA, I conclude that the chance of a fair dismissal for this reason is 25%. Findings in respect of any award pursuant to section 38 of the 2002 Act.14.25 I am satisfied that when these proceedings were commenced the claimant did not have any statement of terms and conditions of employment issued to her which complied with sections 1 and 4 of the 1996 Act.14.26 I am satisfied that the claimant had been asked to issue such statements to the staff in 2010 but had not thought it proper to issue one to herself.