Case No 4104281/2018Venue GlasgowHearing 3 and 4 September 2018
Between
Miss G McGregorClaimantSportswift LtdRespondent
Before
Employment Judge Mr G WoolfsonGraham Dunlop (instructed by Counsel) for respondentDate 3 October 2018
JUDGMENT
The dismissal of the claimant was fair, and the claim for unfair dismissal is dismissed.
REASONS
[1]The claimant brought a claim of unfair dismissal. The claimant represented herself and the Tribunal heard evidence from the claimant. The claimant also called two witnesses, Sheila McLean and Zara Kane who are both employed by the respondent. The respondent was represented by Graham Dunlop (counsel). For the respondent, evidence was led from Sarah Rollo and Geraldine Jackson, both Area Managers. The Tribunal was referred to a bundle of documents for the respondent. The claimant brought a few additional documents which were added to the bundle. Submissions were made by Mr Dunlop for the respondent and by the claimant on her own E.T. Z4 (WR) behalf. The claimant was provided with copies of the authorities to which Mr Dunlop referred.
The issues to be determined
[2]The issues to be determined are the following: 2.1. whether the respondent had a genuine belief in the alleged conduct of the claimant; 2.2. if so, whether there were reasonable grounds for that belief; 2.3. if so, whether those grounds followed a reasonable investigation; 2.4. if so, whether the decision to dismiss was within the range of reasonable responses; and 2.5. if the claimant was unfairly dismissed, whether an order for reinstatement should be made and the amount of any compensation, including whether that should be reduced to take account of any contributory conduct of the claimant or the application of Polkey v AE Dayton Services Ltd [1987] IRLR 503. Findings in fact[3]The Tribunal makes the following relevant findings in fact: 3.1. The respondent trades as the Card Factory. It trades on the high street as a card retailer, across the UK. It has 940 stores in the UK, with 80 of those being in Scotland. 3.2. The claimant worked out of the respondent’s store in Maryhill. The claimant commenced employment with the respondent on 26 September 2015 as a Temporary Seasonal Sales Assistant. 3.3. On 24 September 2015, two days before the commencement of her employment, the claimant was issued with and signed a Statement of Particulars of Employment. The Statement of Particulars of Employment included reference to the Disciplinary Rules. The Disciplinary Rules contain examples of gross misconduct, including gross negligence and “failing to comply with Company Procedures and instructions relating to Cash Handling and Security, which results in, or places the Company at risk of, financial loss”. 3.4. On 24 September 2015 the claimant also signed an induction training sign off sheet, confirming that she had read and understood the Cash Handling 3.5. The claimant’s temporary position was extended on a number of occasions, during which time she became the Temporary Assistant Manager. On 30 June 2017, her post was confirmed as permanent. She was by then the Assistant Manager. 3.6. In the course of 2017 the Cash Handling Policy was updated. On 3 June 2017 the claimant signed a document certifying that she had read, understood and would follow a number of policies and procedures, including the Cash Handling Policy (Keyholder/Cashier). This followed a presentation on the new policies and procedures by the Store Manager. 3.7. In each store there is a safe. At any one time, there is a designated Keyholder who has responsibility for the safe and its keys. The safe contains the tills (each with a £100 float), change and the takings from the previous night. The designated Keyholder runs the tills, and has responsibility for cash, credit, till floats, change and going to the bank. 3.8. In terms of the Cash Handling Policy, a full safe check is to be completed every day by the designated Keyholder. A full safe check is also to be completed when the designated Keyholder changes during the day. The Policy states that both Keyholders must complete the safe check. 3.9. Usually, the takings for one day are taken to the bank the following day. However, at busy periods, such as Christmas, the designated Keyholder will take cash to be banked during the day in order to carry out a “split banking”. This is to ensure the store stays within its insurance requirements in terms of the amount of cash it retains at any one time. 3.10. When a till exceeds the sum of money which it is permitted to retain, the cashier is alerted through a mechanism within the till. The designated Keyholder will then arrange a “cash lift”, and will take the appropriate amount of cash to the safe and place the cash in the safe and into a till lift bag. This will usually involve sums of between £100 and £300. 3.11. When the banking takes place, the designated Keyholder opens the till lift bags and places the cash in a larger banking bag. The Keyholder completes a pay in slip within a banking book. The pay in slip is in two portions. The information to be included on both portions is the same, and includes a breakdown of the cash, the total sum banked, the date, the bank account number, and the serial number of the banking bag. The pay in slip is then signed by the designated Keyholder, on both portions. The pay in slip is placed within the banking bag and the bag is sealed. 3.12. The sealed banking bag is taken to the Post Office. If there is a split banking, this will happen during the day. Otherwise, the banking bag will be taken to the Post Office the following day. In that case, the designated Keyholder from the previous day will have placed the cash in the banking bag, together with the pay in slip. 3.13. The respondent has a daily till sheet which identifies each till and the person responsible for each till, together with information regarding the floats and other cash amounts including the daily takings. The designated Keyholder signs the daily till sheet and identifies the serial number of the banking bag. 3.14. The respondent has an Operations Diary. Amongst other things, this identifies the designated Keyholders for the day, and the times during which a particular employee is the designated Keyholder. The designated Keyholder is required to write his or her name and signature in the daily plan section of the Operations Diary, together with the time from which they are Keyholder and the time at which they stop being Keyholder on that day in the event of a shift changeover (i.e. change of Keyholder). 3.15. The Operations Diary includes a float check sheet. This is to be completed on each day in order to identify the amount of the float within the store, the takings in the safe, any shift changeover, and the person who has checked the floats and takings. This document is completed in the morning and in the evening by the designated Keyholder, and also in the event of a shift changeover. This document will identify the takings which are left at the end of each day, and the same amount should be identified in the section for the morning of the following day. 3.16. In October 2017 an Area Manager Visit Report was completed. This followed an audit of the Maryhill store. Amongst other things, matters which were examined included cash handling and admin. The score was 93%, with minimal issues being identified. 3.17. Towards the end of December 2017, a discrepancy within the banking was identified. As a result of information provided to the accounts department from the Post Office, £487.97 was noted as a sum which was meant to have been banked but which was not showing in the accounts. This related to the banking on 13 December 2017 for the Maryhill store. 3.18. As a result of this, the Area Manager for the Maryhill store, Gillian Fairservice, carried out an investigation. She met with the claimant on 29 December 2017. A handwritten minute of that meeting was signed by Ms Fairservice and the claimant. The following points are of particular relevance from the notes of that meeting:(a) The claimant confirmed that on the morning of 13 December 2017 she was not in charge of the safe. The person in charge of the safe (the designated Keyholder) was the Store Manager. However, later that day there was a shift changeover, after which the claimant was in charge of the safe as the designated Keyholder.(b) The claimant confirmed that she did not physically count the safe, as the Store Manager did this. The claimant confirmed she nevertheless signed for the safe. She did so because she was sitting next to the Store Manager whilst the Store Manager was counting the safe, which the claimant said the Store Manager always did.(c) Ms Fairservice made reference to the Cash Handling Policy. She explained the Policy states that both Keyholders must complete the safe check and the Operations Diary together when the designated Keyholder changes during a day. When the claimant was asked whether this was fully completed, she stated that the Store Manager had counted the safe. When the claimant was asked whether she had at any point looked into the safe for any sums still to be banked, the claimant said she had not.(d) The claimant confirmed that she had read, understood and signed the Cash Handling Policy.(e) The claimant confirmed that at close of business on 13 December 2017 she had £461 to be banked. The claimant was asked why on the evening of 13 December 2017 a different sum of money had been accounted for. This was a reference to the float check sheet within the Operations Diary. This had been signed by the claimant and showed the sum of £487.97 on the evening of 13 December 2017, being the takings identified at the end of the day. The claimant stated that it was not her handwriting in the Operations Diary. She stated that she was not the best at paperwork and that the Store Manager had filled in the relevant section. By this, the claimant was explaining that although she had signed the float check sheet she had not written the figure of £487.97 on the float check sheet, as that had later been done by the Store Manager. The claimant confirmed that at no point had she seen, counted or banked £487.97.(f) The claimant explained that the Store Manager also made her sign a pay in slip, and that she did sign it but did not check it first. This was a reference to a pay in slip dated 13 December 2017 for the amount of £487.97 which the claimant signed on 15 December 2017 at the request of the Store Manager.(g) The claimant confirmed that the only cash which she had to bank on 13 December 2017 was £461, and that she did not know where the £487.97 had gone. 3.19. The claimant also attended a loss prevention interview with another Area Manager, Leigh Moore, who is a loss prevention specialist. This took place on 5 January 2018. When referred to the pay in slip of 13 December 2017, and asked why she would sign for something which she hadn’t done, the claimant stated: “I am hopeless with paperwork. I just sign and don’t look at it.” The claimant was informed that if she continued to fail to adhere to company instructions she would be retrained and it may lead to disciplinary proceedings. She was further informed that in the meantime she was being suspended from Keyholder duties. A handwritten minute of that meeting was signed by Ms Moore and the claimant. 3.20. On 10 January 2018 the claimant attended a further meeting with Leigh Moore. A handwritten minute of that meeting was signed by Ms Moore and the claimant. The following points are of particular relevance from the notes of that meeting: (a) The claimant confirmed that she had carried out cash lifts when she was not the designated Keyholder, though stated that the Store Manager had told her to do that and that others did this as well. (b) The claimant confirmed that she had completed and signed a pay in slip for money she had not prepared and banked. (c) When it was put to the claimant that she had failed to correctly fill in the daily till sheet and Operations Diary, the claimant confirmed that she did not always sign for parts of her paperwork and that she should pay more attention. 3.21. At the conclusion of the meeting on 10 January 2018, the claimant was suspended from work on full pay pending a disciplinary hearing. This was confirmed by letter dated 12 January 2018. 3.22. Gillian Fairservice and Leigh Moore also met with and interviewed the Store Manager as part of the investigation into the missing £487.97 and also in relation to missing till lifts from 24 December 2017. They also met with and interviewed another employee, also a Keyholder, who will be referred to as SK, in relation to the missing till lifts from 24 December 2017. The issue around the till lifts related to employees trained to Keyholder level carrying out their own cash lifts when on the till (i.e. removing cash from the till and placing it under the tray of the till) when till lifts should only have been carried out by the designated Keyholder. 3.23. Sarah Rollo is the Area Manager for the west of Scotland, covering 21 stores, though her area does not include the Maryhill store. Mrs Rollo has a degree in Human Resources Management with Business Administration and has undertaken training on handling investigations, disciplinaries and grievances. 3.24. Mrs Rollo was asked to chair a disciplinary hearing, following the investigation carried out by Gillian Fairservice and Leigh Moore. She was asked to chair hearings for the claimant and also the Store Manager and SK. Mrs Rollo was provided with the investigation notes, the Operations Diary, daily till sheets, pay in slips and the Cash Handling Policy. 3.25. By letter dated 15 January 2018 the claimant was asked to attend a disciplinary hearing on 18 January 2018. The letter states the following: “The nature of the complaint is allegations of breaches of the Company Cash Handling Policy namely;• Banking Point 3. The takings must then be placed in The BQD/Fastcash/Cash Deposit bag and sealed, the serial number of the BQD/FC/CD bag must be recorded on the bank paying in slip underneath the date. Allegations of;• Gross Negligence relating to the store banking monies namely; o Carrying out cash lifts on your own when not the designated keyholder for the day o Completing and signing a Post Office paying in slip for monies not banked by you o Failing to correctly complete the DTS (including the recording of banking’s prepared by and deposited by) o Failing to correctly complete the Store Operations Diary (including correct safe handover and recording of safe check both morning and evening) Allegations of;• Loss of company monies• Dishonest Conduct” 3.26. The letter of 15 January 2018 also enclosed a number of documents, including the notes of the investigation meetings with Ms Fairservice and Ms Moore, the daily plan section of the Operations Diary for 13 December 2017, the float check sheet within the Operations Diary for 13 December 2017, the daily till sheet for 13 December 2017, the pay in slip dated 13 December 2017 for £487.97, the policy and procedures changes form signed by the claimant on 3 June 2017, the Cash Handling Policy and the disciplinary 3.27. The letter also informed the claimant that she had the right to be accompanied by a trade union representative or work colleague. 3.28. The disciplinary hearing took place on 18 January 2018. The claimant was unaccompanied, and she confirmed at the start of the meeting that she had chosen not to be accompanied. Mrs Rollo chaired the meeting. A handwritten minute of the meeting was signed by Mrs Rollo and the claimant. The following points are of particular relevance from the notes of that meeting: (a) When asked to talk through the allegation, the claimant explained that the allegation was about missing money on 13 December 2017 when the Store Manager was in charge of the safe. (b) The claimant stated that she was hopeless with paperwork and forgot to sign everything. (c) The claimant explained that the Store Manager had been in charge of the safe (as the designated Keyholder) on 13 December 2017 and had counted the banking money. The claimant said she was beside the Store Manager when the Store Manager did this and this was at 4:15pm. (d) The claimant explained that the Store Manager then went to the bank with the £487, and when the Store Manager returned the Store Manager didn’t have any banking money. (e) The claimant explained that she physically only had her banking of £461. (f) The claimant stated that she did a safe check at 4:15pm. When asked if she did a final safe check the claimant said: “no we never do when you’ve done a check”. (g) The claimant was asked why the Operations Diary referred to £487. This was a reference to the float check sheet stating that the takings at the end of the day on 13 December 2017 were £487, and not £461. The claimant stated: “This is the bit I always forget to write in the banking.”(h) When asked about the next day, 14 December 2017, the claimant confirmed that she had forgotten to take her banking to the Post Office and had not yet written up the banking. This was a reference to the claimant not having completed a pay in slip for her banking of £461 the previous evening.(i) The claimant referred to new daily till sheets being in place from the start of December.(j) The claimant explained that the Store Manager filled in parts of the float check sheet which the claimant signed, as the claimant forgets. She explained that although she had signed the float check sheet for the morning of 14 December 2017, above her signature was the writing of the Store Manager which showed £487.97 instead of £461.(k) The claimant stated that every Friday the Store Manager asked her to sign something which she had forgotten to sign. She explained that on Friday 15 December 2017 the Store Manager asked her to sign a pay in slip for £487 (which was dated 13 December 2017).(l) It was pointed out that in the float check sheet entry for 13 December 2017 there was reference to a till lift of £200. The claimant said that this had not been filled in when she had completed it and that it had been blank.(m) The claimant was referred to the daily till sheet. It was pointed out that the relevant sub-totals did not add up to the £461 which the claimant had said was the remaining takings at the end of the day on 13 December 2017. The claimant stated that she knew she had £461 for banking, and also said that she shouldn’t have been at work due to her husband’s illness and that: “I openly admit I’m crap at paperwork”.(n) The claimant stated that she was so annoyed at herself for not checking the banking and would not risk her job for £487.(o) The claimant stated that she had been under so much stress.(p) The claimant said: “The only thing I’m guilty of is not signing.”(q) The claimant was asked to explain the cash handling procedure to the end of the day and the claimant said: “Fill out and don’t sign until you’ve done it. I know what to do. I just signed because I always forget.”(r) The claimant was asked who had responsibility for cash lifts, and the claimant said it was whoever was on the safe. She explained that this means “you give them a bag, count it, seal it, sign it, and attach slip”.(s) She confirmed that she had not checked the amount before signing. She said: “I 100% know what I’ve done, been stupid enough not to sign stuff….If I’ve still got my job I’ll never do it again.”(t) The claimant acknowledged that if she had followed the Cash Handling Policy then she wouldn’t have been there, i.e. at a disciplinary hearing. 3.29. The disciplinary hearing was adjourned for 50 minutes. When the hearing was reconvened, Mrs Rollo informed the claimant that after careful consideration she had found the claimant’s actions to be wholly unacceptable and gross misconduct. She said that the claimant had admitted to numerous breaches of the Cash Handling Policy, and in particular:• failing to correctly complete the daily till sheet,• failing to correctly complete the Operations Diary,• signing paperwork without fully checking information,• failing to fill in paperwork on time,• carrying out cash lifts when not the Keyholder, and• signing for banking which she didn’t prepare. 3.30. Mrs Rollo stated that this had led to a loss of company money, which she said is grossly negligent. She stated that she had no alternative than to summarily dismiss the claimant. Mrs Rollo also explained that the allegation of dishonest conduct was being removed. 3.31. The claimant was dismissed with immediate effect from 18 January 2018, without notice or payment in lieu of notice. The claimant’s dismissal was confirmed by letter dated 26 January 2018. 3.32. The daily till sheet includes a section for the serial number of the banking bag to be included. Although a serial number had been included on the daily till sheet for 13 December 2017, the number was not legible. In addition, the claimant had not signed the daily plan section of the Operations Diary to confirm that she had taken over as the designated Keyholder at around 4:15pm on 13 December 2017. These issues were taken into account by Mrs Rollo, though they had not been raised with the claimant. 3.33. Another issue which Mrs Rollo took into account was that the claimant had said that she had not carried out a final safe check. Mrs Rollo considered this to be a breach of the Cash Handling Policy under “Safe”, point 4, which includes the following: “A full safe check (i.e. the entire contents of the safe including floats, banking’s, till lifts and stamps – sealed bags of coin are not to be opened but till lifts should be) must be completed every day by the designated keyholder.” 3.34. However, it was not put to the claimant, as an allegation, that she had breached this part of the Cash Handling Policy. The letter of 15 January 2018 inviting the claimant to the disciplinary hearing did not refer to the above passage. 3.35. The letter of 15 January 2018 referred to the Cash Handling Policy under “Banking”, point 3, which provides the following: “The takings must then be placed in The BQD/Fastcash/Cash Deposit bag and sealed, the serial number of the BQD/FC/CD bag must be recorded on the bank paying in slip underneath the date.” This will be referred to as “banking point 3”. 3.36. With regard to banking point 3, there was initially a concern around whether the claimant had sealed the banking bag. However, the claimant was able to clarify this and this did not form part of the reason why Mrs Rollo dismissed the claimant. Mrs Rollo did nevertheless consider there to have been a breach of banking point 3, and that was primarily due to a lack of clarity over the completion of pay in slips. 3.37. With regard to the allegation in the letter of 15 January 2018: “Carrying out cash lifts on your own when not the designated keyholder for the day”, this was not discussed during the disciplinary hearing. Mrs Rollo relied on the fact that during the investigation meeting with Leigh Moore on 10 January 2018 the claimant had confirmed that she had carried out cash lifts when she was not the designated Keyholder. 3.38. With regard to the allegation in the letter of 15 January 2018: “Completing and signing a Post Office paying in slip for monies not banked by you”, Mrs Rollo relied on the claimant’s confirmation that on 15 December 2017 she had signed the pay in slip for 13 December 2017 which was for the £487.97 in question, being monies not banked by the claimant. 3.39. With regard to the allegation in the letter of 15 January 2018: “Failing to correctly complete the DTS (including the recording of banking’s prepared by and deposited by)”, Mrs Rollo took into account two issues. Firstly, the relevant sub-totals in the daily till sheet did not add up to £461, being the sum which the claimant said she had ready for banking at the end of the day on 13 December 2017. This issue was discussed during the disciplinary hearing. Secondly, Mrs Rollo had regard to the foot of the daily till sheet not including a legible banking bag serial number or the amount of the banking. This second issue was not discussed during the disciplinary hearing or the investigation. In addition, the daily till sheet, at the relevant section, only requires the serial number of the bag to be included, and not the amount of the banking. 3.40. With regard to the allegation: “Failing to correctly complete the Store Operations Diary (including correct safe handover and recording of safe check both morning and evening)”, Mrs Rollo took into account three issues. Firstly, the claimant having explained that she had signed the float check sheet, even though it was the Store Manager who added the banking figures. This meant that for the evening of 13 December and the morning of 14 December 2017 the float check sheet referred to £487.97 instead of £461. Secondly, Mrs Rollo had regard to the float check sheet for 13 December 2017 showing a till lift of £200, which the claimant said had been blank. Mrs Rollo considered the claimant should have put a line through the relevant field to signify that it was blank, though this particular point was not discussed. Thirdly, Mrs Rollo had regard to the claimant not having signed the Operations Diary at the point when she took over as Keyholder on 13 December 2017. This third issue was not discussed during the disciplinary hearing or the investigation. 3.41. By letter dated 27 January 2018 the claimant appealed against her dismissal. Her grounds of appeal were the following: “It has been said I have failed to fill in DTS and also the Store Operations Diary. Both I feel require training which I have never received. I also have a clean record within my 3½ year employment at Card Factory. Not taken personal circumstances into account. Misunderstanding about sealing of a banking bag.” 3.42. By letter dated 2 February 2018 the claimant was asked to attend an appeal hearing on 8 February 2018. She was informed of her right to be accompanied by a trade union representative or a work colleague. 3.43. The appeal hearing took place on 8 February 2018, and was chaired by Geraldine Jackson, Regional Human Resources Advisor. Prior to the appeal hearing, Ms Jackson was provided with the notes of the investigation, the Operations Diary and pay in slips. 3.44. The claimant attended the appeal hearing her own. She confirmed at the start of the meeting that she did not require to be accompanied. A handwritten minute of the meeting was put together by a note taker and signed by the claimant. The following points are of particular relevance from the notes of that meeting: (a) The claimant confirmed that on the evening of 13 December 2017 she completed her own banking, but did not complete the pay in slip until the following day. She said this was because she had a call from the hospital regarding her husband. (b) The claimant confirmed that she had completed another pay in slip on the Friday morning (15 December 2017) and that she just signed it without paying attention, the Store Manager having already completed part of the pay in slip. (c) The claimant confirmed that it was the Store Manager who counted the safe, and that the claimant would witness it. The claimant said that if she had been given proper training then she would have known that she should have counted as well. (d) The claimant explained that paperwork was not her strong point and that she would rather be working and would forget to sign things. (e) The claimant referred to there having been new cash sheets and that she had asked the Store Manager how to complete them. (f) The claimant referred to the fact that her husband had been terminally ill around the time in question, and that she shouldn’t have been at work. She said that work was the only normal thing in her life. (g) The claimant stated that she wanted her job back and that she wasn’t shown how to do things. 3.45. Ms Jackson carried out further investigation. She met with Leigh Moore on 12 March 2018. Amongst other things, Ms Moore confirmed that the claimant hadn’t herself counted the safe on the day in question, when she was meant to have done so at the point of the safe handover. She also explained that because procedures had not been followed, they were unable to establish where or when the money went missing. 3.46. Ms Jackson met with Gillian Fairservice on 12 March 2018. Ms Jackson asked if any concerns had been raised regarding training or paperwork in the store. Ms Fairservice replied: “There has never been in the past. The paperwork was always immaculate. [The Store Manager] had been there a long time and whenever I audited the store she always scored really high, a green score.” Ms Fairservice said that she had never picked up on Cash Handling Policy breaches or paperwork issues, including in relation to the claimant and this was even though the claimant had said in the investigation she wasn’t the best at paperwork. Ms Fairservice said that the claimant never approached her for further training. Ms Fairservice also confirmed that she was aware of the medical situation around the claimant’s husband but that there were no concerns around whether the claimant had been fit to work. 3.47. Ms Jackson met with Sarah Rollo on 12 March 2018. Mrs Rollo was asked why she decided to dismiss the claimant. Mrs Rollo explained it was because of admitted breaches of cash handling: the claimant signed for the banking but hadn’t done it; paperwork had not been filled in correctly; tills were counted but not by the correct people; people doing their own cash lifts; the claimant signed for the safe but hadn’t checked it; she signed paperwork two days later; she admitted she was bad at paperwork. Mrs Rollo said: “The key for me was that through her negligence, this has happened. The same principle was applied to the Store Manager. I couldn’t prove who had taken it but by being negligent and not following CHP as they should have, the money has gone missing.” 3.48. Mrs Rollo also confirmed that she had considered a final written warning. She explained that she gave the other Keyholder, SK, a final written warning, and the distinction was that at no point had that employee been responsible for the safe. Mrs Rollo explained that because the claimant was responsible for the store and the money when the cash went missing, she decided to dismiss. 3.49. By letter dated 15 March 2018 Ms Jackson informed the claimant that her appeal had been turned down. The letter addressed the following relevant points: (a) With regard to banking point 3, Ms Jackson explained that the claimant had sealed the banking bag (on 13 December 2017, with £461), but had admitted that she did not record the serial number under the date in the pay in slip on the day in question. (b) Ms Jackson explained that the claimant had signed for banking which she had not prepared, by signing a pay in slip on 15 December 2017, without paying attention, which had partially been completed by the Store Manager. (c) Ms Jackson explained that the claimant had stated that the Store Manager would always count the safe at the point of handover, and the claimant would witness it, and that the claimant had said that if she had received proper training then she would have known that she should have counted it as well, and that errors with paperwork and breaches had not been raised by Gillian Fairservice during audits. However, Ms Jackson also stated that Ms Fairservice had confirmed that paperwork was always immaculate when she visited the store. (d) Ms Jackson explained that although the claimant had said she had required training on paperwork, including the daily till sheet, she had never approached the Store Manager or Area Manager for training, and the claimant had been Assistant Manager for 18 months. Ms Jackson stated that completing paperwork accurately was part of the claimant’s role and she had taken no action to address this herself. Ms Jackson stated that the claimant had also signed the Policy and Procedure Changes 2017 on 3 June 2017 to certify she had read, understood and would follow all procedures, including the Cash Handling Policy. (e) Ms Jackson explained that the claimant had admitted being careless with paperwork though had stated she would not risk her job for the money. Ms Jackson confirmed, however, that the claimant had not been dismissed for theft of company money. She had been dismissed for breaches of the Cash Handling Policy and gross negligence. (f) Ms Jackson explained that although it was acknowledged that the claimant had been going through a lot in her personal life, if the claimant attended work then the expectation was she would be able to fulfil her duties. (g) Ms Jackson also confirmed that Mrs Rollo had considered sanctions up to and including dismissal. However, because the claimant was the Keyholder when the money went missing and as she had admitted to serious breaches of the Cash Handling Policy and being grossly negligent by failing to complete the paperwork correctly and signing a pay in slip for banking she didn’t prepare, this resulted in a loss of a significant amount of money which could not be traced. Ms Jackson explained that Mrs Rollo therefore felt she had no alternative than to dismiss. 3.50. Ms Jackson also identified: (a) that the claimant had not signed the Operations Diary at the point when she took over as Keyholder on 13 December 2017, and (b) that the takings for 13 December 2017 had not been banked before 2:00pm on 14 December 2017, and that neither of these issues had been discussed during the investigation or disciplinary stages. Neither of these issues were discussed during the appeal hearing. Ms Jackson, however, focused on the issues which had been discussed with the claimant when making her decision. 3.51. Following her dismissal on 18 January 2018, the claimant attended a couple of job interviews. She obtained new employment from 25 May 2018, and has been working 25 hours a week at £8.50 per hour. This is a higher rate of pay than the claimant had with the respondent. Whilst employed with the respondent she earned £7.64 per hour (and was also contracted for 25 hours per week) with an employer pension contribution of 1%. 3.52. The Store Manager was also dismissed by Mrs Rollo. SK was issued with a final written warning. This was due to SK having admitted to walking away from the till when cashing up and also carrying out her own cash lifts on 24 December 2017, which were breaches of cash handling procedures. She was not dismissed because she was not in charge of the safe on the days involved. Observations of the witnesses[4]All of the witnesses gave their evidence honestly, answered questions to the best of their ability and made concessions where it was appropriate to do so. Particular note is made of the claimant’s honesty, and the way in which she has been open and clear about her conduct, throughout the disciplinary process and when giving evidence.
Relevant law
[5]The applicable legislation is the Employment Rights Act 1996 (the “ERA”). In terms of section 94 of the ERA: (1) An employee has the right not to be unfairly dismissed by his employer.[6]In terms of section 98 of the ERA (insofar as relevant):(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 within 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) A reason falls within this subsection if it— ……. (b) relates to the conduct of the employee, …… (4) 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 reason 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.[7]When considering section 98(4), the Tribunal must have regard to the test set down in British Home Stores Ltd v Burchell [1980] I.C.R. 303. The Tribunal needs to establish whether the respondent “entertained a reasonable suspicion amounting to a belief in the guilt” of the claimant. As Justice Arnold went on to say: First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further.[8]The Tribunal must also decide whether the decision to dismiss fell within the “range of reasonable responses” which is open to a reasonable employer. This means it is not for the Tribunal to decide whether or not (had it been the employer) it would have taken the same decision; instead, the Tribunal is to consider the information which the respondent had before it and decide whether, in the light of that information, the decision of the respondent was within the range of reasonable responses. See Iceland Frozen Foods Ltd v Jones [1983] I.C.R 17, and also the following passage from Enable Care & Home Support Ltd v Pearson UKEAT/0366/09 (paragraph 16): As interpreted by the higher courts, it is for the Employment Tribunal to determine what was the employer's reason for dismissal, that is the ‘set of facts known to the employer or it may be of beliefs held by him, which cause him to dismiss the employee’ (Abernethy v Mott, Hay and Anderson [1974] ICR 323; per Cairns LJ). In determining the case in accordance with equity and its substantial merits it is for the Employment Tribunal to form its view (there being a neutral burden of proof), in the case of a conduct dismissal, as to whether the employer has carried out a reasonable investigation and has reasonable grounds for its belief in the misconduct relied on. If that question is answered in the affirmative, as here, the final question for the Employment Tribunal is whether dismissal for the employer's reason, as defined by Cairns LJ, falls within the range of reasonable responses open to him. What that means is that if across the spectrum of reasonable employer's sanctions some would dismiss and some would impose a sanction short of dismissal, then dismissal falls within the band and is fair. The dismissal will only be unfair if dismissal is a sanction outside that spectrum; that no reasonable employer would have dismissed the employee for the employer's reason.[9]The correct approach is usefully summarised by Mr Justice Langstaff (President) in Sharkey v Lloyds Bank PLC UKEATS/0005/15, at paragraph 9: The focus is thus on the employer’s reason for dismissal and whether the employer’s actions, focusing upon those actions, were reasonable or unreasonable. The conventional approach, derived from British Home Stores Ltd v Burchell [1978] IRLR 379, is that it is for the employer to show the reason (here, the reason was conduct; that is not controversial). Then there is a four-stage test in order to determine the question arising under section 98(4): does the employer have a genuine belief in the misconduct, are there reasonable grounds for that belief, do they follow a reasonable investigation, and is the decision to dismiss one that is within the band of reasonable responses?[10]The range of reasonable responses test also applies to the procedure by which that decision is reached. In Sainsbury’s Supermarket Ltd v Hitt [2003] I.C.R 111, Lord Justice Mummery stated (paragraph 30): The range of reasonable responses test (or, to put it another way, the need to apply the objective standards of the reasonable employer) applies as much to the question whether the investigation into the suspected misconduct was reasonable in all the circumstances as it does to the reasonableness of the decision to dismiss for the conduct reason. Submissions: the respondent[11]The following is a summary of the submissions presented by Mr Dunlop on behalf of the respondent: 11.1. The issue for the Tribunal is whether the respondent acted reasonably, and the Tribunal must not substitute its own view for that of the respondent. If some employers would dismiss and others would not dismiss, then dismissal is fair. The facts to be considered are those known reasonably to the employer, and not facts arising at the Tribunal hearing (London Ambulance Service NHS Trust v Small [2009] EWCA Civ 220, paragraphs 41 to 43). However, the test in British Home Stores Ltd v Burchell [1980] I.C.R. 303 must be satisfied. 11.2. There was a genuine belief after a reasonable investigation involving a loss prevention expert and Area Manager and a considerable catalogue of documents. The claimant has produced documents for the Tribunal which were not before the respondent at the relevant time. The claimant appears to be seeking to be absolved. However, the claimant was not dismissed for dishonesty or theft. She was dismissed for failing to comply with policy and 11.3. The £461 was not recorded by the claimant, and there is no evidence the claimant approached anyone to say she didn’t know how to complete the float check sheet or Operations Diary. 11.4. The question is whether it was reasonable to believe that the claimant had failed to comply with the Cash Handling Policy in terms of proper recording of the banking. The claimant admitted in the course of the internal process that she had not properly recorded the banking. She admitted carrying out cash lifts when she was not the designated Keyholder, and this did not need to be explored at the disciplinary hearing given that the claimant had already accepted this. She accepted that she completed a pay in slip for monies not banked by her (the £487.97). She failed to correctly complete the daily till sheet, and accepted this during the investigation so this did not need to be explored at the disciplinary hearing. She failed to correctly complete the Operations Diary which meant that the figure of £461 did not appear on the float check sheet, and instead £487 appeared. She signed this even though information was missing. She also did not sign her name to confirm that she took over as Keyholder at the shift handover. She admitted not to have carried out a count. The consequence is loss of monies (but not dishonest conduct). Mrs Rollo took into account the cumulative effect of all of this. There were continual admissions by the claimant that she forgot to do banking, was hopeless with paperwork and that every Friday there would be omissions in the paperwork. The claimant was aware of what she had done. 11.5. The claimant’s appeal was on very limited grounds. She did not make a request for training. At best, she can say that she spoke with the Store Manager about the daily till sheet. Her clean disciplinary record was taken into account. The fact that her husband was unwell at the time did not explain the claimant being poor at paperwork or noticing errors every Friday. The claimant stated that she would rather be working than doing paperwork. Forgetfulness is not a training issue. 11.6. A great deal of the respondent’s evidence was not challenged. The claimant accepted in cross-examination that the float check sheet and Operations Diary had not been completed correctly. There was no suggestion that the Cash Handling Policy training was inadequate. 11.7. If the claim is to succeed, reinstatement or re-engagement would not be appropriate given that the claimant contributed to her dismissal and in light of the alleged misconduct and the claimant’s admissions around failure to comply with the Cash Handling Policy. The bond of trust cannot be repaired by re-engagement. The issue of practicability should not be confused with possibility. 11.8. Given the claimant’s new employment, the maximum period of loss is 18 weeks at £191 per week (£3438) plus pension contributions of £34 representing a 1% contribution. The basic award would be £382. However, any award, other than the basic award, should be reduced to reflect the conduct of the claimant. Submissions: the claimant[12]The following is a summary of the submissions presented by the claimant: 12.1. The evidence is strong that there were cash handling breaches. However, she could have been given a final written warning. 12.2. If the Store Manager was in a better position to have shown the correct way to do things, she would have done it correctly in the first place. 12.3. They had not been told that both the serial number of the bag and also the amount of the banking had to be included in the daily till sheet. Why was this not raised in an audit? 12.4. The need to sign at the point of a change of Keyholder should also have been brought up in an audit. 12.5. With regard to carrying out your own cash lifts when not the designated Keyholder, as long as you are the till supervisor you can carry out your own cash lifts. 12.6. It was said that the claimant did not fill in the bag serial number on the day. However, the serial number was filled in, and all the claimant did not fill in on the day was the amount of her banking (£461). 12.7. During the same week, the claimant’s husband was given his last rites. There should have been 10 or 12 staff, when there were only five of them working every day from 8:30am to 7:00pm. 12.8. This is not about compensation. It’s about things that could have resulted in a final written warning. The claimant loved her job, and the allegation of dishonest conduct was removed. She would like reinstatement.
Discussion
[13]The respondent has shown that it is the conduct of the claimant which led to the decision to terminate her employment. Therefore, section 98(2)(b) of the ERA applies to this case. The conduct of the claimant is a potentially fair reason for dismissal.[14]The next issue is whether it was reasonable for the respondent to treat the conduct of the claimant as a sufficient reason for dismissal, under section 98(4) of the ERA.[15]When considering the question of reasonableness, I will apply the four-stage test set out in Sharkey (above), which again is in the following terms: Then there is a four-stage test in order to determine the question arising under section 98(4): does the employer have a genuine belief in the misconduct, are there reasonable grounds for that belief, do they follow a reasonable investigation, and is the decision to dismiss one that is within the band of reasonable responses?[16]I will take each of the stages in turn. Stage 1: is there a genuine belief in the misconduct?[17]It is first necessary to identify the conduct itself. The alleged misconduct can be summarised as follows: 17.1. the claimant had breached banking point 3 as she had sealed the banking bag on 13 December 2017 with £461, but did not record the serial number on the pay in slip until the following day; 17.2. on 15 December 2017 the claimant signed a pay in slip for 13 December 2017 which was for the £487.97 in question, being monies not banked by the claimant; 17.3. the claimant had signed the float check sheet, even though it was the Store Manager who added the banking figures, which meant that for the evening of 13 December and the morning of 14 December 2017 the float check sheet referred to £487.97 instead of £461; 17.4. the claimant had not carried out a full safe check when she became the Keyholder on 13 December 2017 or a final safe check; 17.5. the claimant did not properly complete the daily till sheet as the relevant sub-totals for 13 December 2017 did not add up to £461, being the sum which the claimant said she had ready for banking at the end of the day; 17.6. the claimant had carried out cash lifts when she was not the designated Keyholder; 17.7. the claimant signed the float check sheet without putting a line through the till lift entry to signify it had been blank (which later showed a till lift of £200); 17.8. the claimant did not properly complete the daily till sheet as the foot of the daily till sheet did not include a legible banking bag serial number or the amount of the banking; 17.9. the claimant did not sign the Operations Diary at the point when she took over as Keyholder on 13 December 2017.[18]I am satisfied the respondent had a genuine belief in the alleged misconduct of the claimant. The respondent, during a number of meetings, spoke with the claimant about its concerns. The respondent concluded that the allegations could be substantiated as a result of what the claimant said during those meetings and with reference to documentation. It is also clear from the evidence of the respondent’s witnesses that they genuinely believed the alleged conduct had taken place. Stage 2: are there reasonable grounds for the belief?[19]With regard to the conduct at paragraph 17.1 above, the claimant explained to the respondent that although she had banking of £461 at the end of the day on 13 December 2017, she did not complete the pay in slip until the following day. This is relevant to banking point 3.[20]Banking point 3 is in the following terms: “The takings must then be placed in The BQD/Fastcash/Cash Deposit bag and sealed, the serial number of the BQD/FC/CD bag must be recorded on the bank paying in slip underneath the date.”[21]There was by the end of the disciplinary process no issue in relation to the sealing of the bag. Therefore, the only issue which arises in relation to banking point 3 is whether the serial number of the bag was recorded on the pay in slip underneath the date.[22]The claimant accepted that she had not completed the pay in slip for £461 at the end of the day on 13 December 2017. At the disciplinary hearing this is recorded as the claimant saying she had not written up the banking. At the appeal hearing this is recorded as the claimant saying that she completed the pay in slip the next morning.[23]There is nothing specifically recorded in the minutes of these meetings about the claimant not having written the serial number of the bag on the pay in slip, which is the relevant issue under banking point 3. During the Tribunal hearing, the claimant indicated that the parts she forgot to complete were her signature and the amount of the banking, meaning therefore that the serial number had been completed. However, I need to consider the information which was before the respondent. At the time, the respondent was faced with information from the claimant that she had forgotten to write up the banking (i.e. complete the pay in slip) and that she completed the pay in slip the next morning.[24]Mrs Rollo explained in evidence that she considered there to have been a lack of clarity over who completed which pay in slips, and viewed that as the issue under banking point 3. However, she also stated in evidence that in fact the issue was around banking point 1, which is in the following terms: “The designated keyholder must prepare all of the day’s takings at the close of business by checking the monies, completing and signing the paying in slip. Banking must be prepared in accordance with the Cash Handling functions manual.”[25]Ms Jackson was satisfied that there had been a breach of banking point 3, on the basis that (as set out in her letter of 15 March 2018) the claimant had admitted she had not recorded the serial number on the pay in slip on the day in question. However, as noted above (paragraph 23), the minutes do not identify such an admission by the claimant. The minutes record that the claimant had forgotten to do the banking and that the pay in slip had been completed the next morning.[26]The fact that Mrs Rollo now focuses on banking point 1 is not entirely satisfactory. Neither is the fact that Ms Jackson in her letter to the claimant referred to an admission which is not recorded in the minutes. Nevertheless, the fact remains that at both the disciplinary and appeal hearings the claimant confirmed that the pay in slip was not completed until the following day. In these circumstances I conclude it was reasonable for the respondent to believe that the claimant had not properly recorded the serial number on the day in question (13 December 2017) and that it was therefore reasonable for the respondent to believe that the conduct under paragraph 17.1 above had taken place.[27]With regard to the conduct under paragraphs 17.2 to 17.7 above, during the disciplinary process the claimant accepted that she signed a pay in slip on 15 December 2017 without paying attention, which it transpired was a pay in slip for the £487.91 dealt with by the Store Manager on 13 December 2017. She explained that she signed the float check sheet, even though it was the Store Manager who completed the entries with the amounts of the banking (including the £487.91). She confirmed that she did not personally do a safe check at the point when she became Keyholder on 13 December 2017 and that she did not do a final safe check. The respondent identified that the relevant sub-totals in the daily till sheet did not add up to £461, and in connection with this (and other matters) the claimant admitted being bad at paperwork. The claimant confirmed that she had carried out cash lifts when she was not the designated Keyholder and confirmed that it is the designated Keyholder who has responsibility for cash lifts. She also explained that when she completed the float check sheet on 13 December 2017 the entry for the till lift had been blank. Given all of this, I conclude there were reasonable grounds for the respondent to believe that the conduct under paragraphs 17.2 to 17.7 had taken place.[28]With regard to the conduct at paragraphs 17.8 and 17.9 above, these two issues were not discussed with the claimant. I do not accept the submission of Mr Dunlop that the issue under paragraph 17.8 had been discussed with Leigh Moore on 10 January 2018, as the minutes of that meeting do not support that submission. The relevant section of the minutes does not refer to the serial number in the daily till sheet not being legible. In addition, the relevant section within the daily till sheet only requires the banking bag serial number to be added. There is no suggestion in the document that the amount of the banking is also to be included in that section. This view is supported by the fact that within the respondent’s bundle of documents there is a second daily till sheet, for 24 December 2017, which was referred to by Mrs Rollo in evidence. That daily till sheet also includes only the serial number at the relevant section, and not the amount of the banking. Nevertheless, the documents which were available to the respondent and the claimant at the time identified that:(a) the foot of the daily till sheet for 13 December 2017 did not include a legible banking bag serial number, and(b) the claimant did not sign the Operations Diary at the point when she took over as Keyholder on 13 December 2017. Therefore, there were reasonable grounds for the respondent to believe that the conduct under paragraphs 17.8 and 17.9 above had taken place (except to the extent that the foot of the daily till sheet did not include the amount of the banking). Stage 3: do the reasonable grounds follow a reasonable investigation?[29]The respondent had a series of meetings with the claimant. The investigation involved meetings with both Gillian Fairservice and Leigh Moore. Prior to the disciplinary hearing the claimant was provided with copies of the relevant documents. The claimant attended a disciplinary hearing and was given the right of appeal, and following the appeal hearing Geraldine Jackson carried out further investigation before making her decision. Minutes of the meetings were taken, and signed by the claimant. The issues were either discussed with the claimant in the course of these meetings during which the claimant had an opportunity to explain what had happened and why, or the respondent had clear documentary evidence to support its belief. Reference is made to paragraphs 27 and 28 above. Taking all of this into account, I conclude that the investigation was within the range of reasonable responses. Stage 4: is the decision to dismiss within the range of reasonable responses?[30]The reason for dismissal is the conduct of the claimant. The question is whether dismissal for that reason was within the range of reasonable responses. I must try to avoid the “substitution mindset”, by looking at matters objectively and not as if I was the decision maker. I need to consider this from the perspective of an employer acting reasonably.[31]This case involves a number of conduct issues, which are described in paragraphs 17.1 to 17.9 above. There are certain procedural issues which I wish address in connection with the conduct at paragraphs 17.5 to 17.9.[32]In the case of the conduct at paragraph 17.5 (not properly completing the daily till sheet as the relevant sub-totals did not add up to £461), this is evident from the document and the claimant stated that she was bad at paperwork. However, she also raised a concern with the respondent around new daily till sheets being used. At the disciplinary hearing, she referred to new daily till sheets being in place from December 2017. At the appeal hearing she stated that she had asked the Store Manager about how to complete new cash sheets. This was not followed up by Sarah Rollo. Ms Jackson asked questions of Ms Fairservice as outlined at paragraph 3.46 above. However, she did not specifically ask about daily till sheets. The questions were able to establish, more generally, whether any issues around paperwork had either been brought to the attention of Ms Fairservice or otherwise raised with her. However, the point being made by the claimant at the appeal hearing was that she had raised directly with the Store Manager questions around completion of the daily till sheets (or cash sheets). Ms Fairservice would not necessarily have known about any issues raised directly with the Store Manager, particularly if that had been very recent bearing in mind the claimant had explained that the cash sheets were new. However, this specific issue was not followed up by Ms Jackson.[33]The conduct at paragraph 17.6 (carrying out cash lifts when not the designated Keyholder) was not discussed at the disciplinary hearing. The basis for the respondent concluding that this conduct had taken place was what the claimant had said to Leigh Moore during the meeting of 10 January 2018. During that meeting the claimant confirmed that she had carried out cash lifts when she was not the designated Keyholder. She also stated at the meeting on 10 January 2018 that the Store Manager had told her to do cash lifts and that others did this as well. However, there is no evidence that the respondent followed this up with the Store Manager.[34]The conduct at paragraph 17.7 (signing the float check sheet without putting a line through the till lift entry to signify it had been blank) was not discussed in these terms at the disciplinary hearing. The claimant confirmed that the relevant entry had been blank. However, the suggestion that she should have put a line through it to signify it had been blank was not specifically put to her.[35]The conduct at paragraph 17.8 to the extent relevant (not properly completing the daily till sheet as the foot of the daily till sheet did not include a legible banking bag serial number) was not discussed with the claimant at any of the meetings (though it is evident from the document that the serial number is not legible).[36]The conduct at paragraph 17.9 (not signing the Operations Diary at the point when the claimant took over as Keyholder on 13 December 2017) was also not discussed with the claimant at any of the meetings (though it is evident from the document that the claimant had not signed).[37]In addition, the conduct at paragraph 17.4 (not carrying out a full safe check when the claimant became the Keyholder on 13 December 2017 or a final safe check, which the claimant had confirmed) was not put as an allegation prior to the disciplinary hearing. Therefore, the respondent did not give notice to the claimant that this could form part of the reason for dismissal. The respondent also had in mind the daily till sheet not including the amount of the banking next to the bag serial number (which was not legible), even though the daily till sheet does not require the amount of the banking to be referred to within that section.[38]There are therefore certain flaws with regard to the process, insofar as that relates to the conduct under paragraphs 17.4 to 17.9. The question is whether these flaws are such as to render the dismissal unfair (with the need to then consider compensation and whether that should be reduced), or whether, notwithstanding these flaws, the dismissal was within the range (or band) of reasonable responses.[39]When considering in these circumstances whether the dismissal is fair or unfair, the following passage at paragraph 26 of Sharkey is helpful: The question here, as it seems to me, is whether on a fair reading of the Tribunal decision the Tribunal was making the decision it did to the effect that the dismissal here was not unfair because no matter what the errors in process the dismissal would have been fair anyway or whether it was assessing what actually happened and asking whether in all those circumstances, focusing upon the employer’s reasons, the dismissal was on balance fair notwithstanding the flaws. It will almost inevitably be the case that in any alleged unfair dismissal a Claimant will be able to identify a flaw, small or large, in the employer’s process. It will be and is for the Tribunal to evaluate whether that is so significant as to amount to unfairness, any prospect of there having been a dismissal in any event being a matter for compensation and not going to the fairness of the dismissal itself. In assessing fairness an overall approach must be taken (see Taylor v OCS Group Ltd [2006] ICR 1602 and Whitbread plc v Hall [2001] ICR 699, the former in particular emphasising that procedure and substance run together where the section 98(4) test is being applied). Procedure does not sit in a vacuum to be assessed separately. It is an integral part of the question whether there has been a reasonable investigation that substance and procedure run together.[40]It is also helpful to refer to the following passage of His Honour Judge Peter Clark in The Governing Body of Beardwood Humanities College v Ham UKEAT/0379/13, paragraph 12: As Mr Morgan submits, the proper focus for the Tribunal ought to have been the nature and quality of the Claimant’s conduct in totality and the impact of such conduct on the sustainability of the employment relationship. The “reason” for dismissal, for the purposes of s.98 of the Employment Rights Act, is the set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee, as Cairns LJ famously observed in Abernethy v Mott Hay and Anderson [1974] ICR 323; later approved by the House of Lords in Devis & Sons Ltd v Atkins [1997] ICR 662. (The words “in totality” were already underlined.)[41]The claimant made a number of admissions to the respondent with regard to what she had done or failed to do in relation to the respondent’s cash handling procedures. Most significantly, she admitted to signing a pay in slip on 15 December 2017, without paying attention, which was for monies she had not prepared or banked, and which related to the cash that went missing on 13 December 2017. She also admitted to signing the float check sheet, even though she had not herself inputted the figures, which again related to the missing cash. These two issues are particularly significant, as they relate to the missing cash, which was the reason why the disciplinary process was instigated in the first place, and they involved signing important documentation relating to cash which any reasonable employer would wish, and need, to ensure is accurate. Geraldine Jackson summarised the issue in her letter of 15 March 2018 in which she stated that the claimant had been grossly negligent by failing to complete paperwork correctly and signing a pay in slip for banking which she did not prepare, which meant the respondent was unable to trace the missing money. It is clear that it is these issues which weighed particularly heavily in the mind of the respondent when deciding to dismiss. In addition, the claimant confirmed that on the same day she failed to complete the pay in slip for the banking at the end of the day. The respondent therefore found there to be significant failings on the part of the claimant either on or in relation to 13 December 2017, the day on which the cash went missing. This all relates to the conduct under paragraphs 17.1 to 17.3 above.[42]Beyond this, the respondent was able to establish that the claimant did not carry out a safe check in accordance with the Cash Handling Policy, did not ensure the daily till sheet had been completed correctly, carried out cash lifts when she was not the designated Keyholder, did not put a line through one of the entries on the float check sheet, did not write the serial number legibly on the daily till sheet, and did not sign her name in the Operations Diary when she became Keyholder. I have identified procedural flaws around these issues and how they were handled by the respondent. However, the respondent was faced with clear admissions from the claimant as to what she had done, or had clear evidence from the documentation. Perhaps the strongest arguments from the claimant’s perspective are that the respondent did not follow up with what she had said about completion of new daily till sheets or being told by the Store Manager to do cash lifts. However, I do not consider that not following up these issues renders the dismissal unfair. With reference to Sharkey, I do not consider these or the other procedural issues to be so significant as to amount to unfairness. I have regard to the admissions of the claimant, the documentary evidence available to the respondent, the respondent’s clear requirement to ensure absolute compliance with its cash handling procedures and, importantly, the other conduct of the claimant (under paragraphs 17.1 to 17.3) which is particularly significant. Taking all of this into account, I do not consider the procedural flaws render the dismissal unfair.[43]In order to apply the test under section 98(4) ERA, I need to consider all of the circumstances, including equity and the substantial merits of the case. When doing so, and when looking at the process overall (Sharkey), the totality of the conduct (Ham) and the facts known and beliefs held by the respondent (Abernethy), I conclude that the decision to dismiss was within the range of reasonable responses. The respondent acted reasonably in treating the conduct of the claimant as sufficient for dismissal. As such, the dismissal is fair.[44]There are three further issues I wish to address. The first is that the claimant said in her submission that she should have been given a final written warning. However, it is important to understand that even if another employer might have given a final written warning for the same conduct, that does not make the dismissal unfair. This is because of the legal test which is the range of reasonable responses. This means that as long as dismissal is within that range, then the dismissal will be fair (even if another employer might have acted differently). In my opinion, dismissal in this case was within the range of reasonable responses.[45]The second issue is that the employee SK was only issued with a final written warning, even though she had also failed to comply with cash handling procedures. The difference, however, is that SK had not been in charge of the safe on the days involved, whereas the claimant was the designated Keyholder at the end of the day on 13 December 2017. In addition, a significant aspect of the conduct of the claimant related to the completion of paperwork and signing documents which she had not checked or which she knew were incomplete. The respondent considered whether some other disciplinary sanction would have been appropriate in the claimant’s case, but took the decision that dismissal was appropriate given the nature of the conduct and the position of the claimant. I consider that approach to have been within the range of reasonable responses.[46]Thirdly, if I had concluded the dismissal was unfair due to the procedural issues outlined above, I would nevertheless not have made any compensatory award. This is because the claimant contributed to her own dismissal as a result of her conduct, and I do not consider it would have been just and equitable to make such an award in the light of that conduct. I was not addressed on whether it would have been appropriate to make a Polkey deduction. However, I would have had to consider this, and I would have found that the likelihood of the claimant being dismissed after a fair procedure would have been 100%.[47]The claimant was seeking reinstatement. However, given the contributory conduct of the claimant, I would not have considered it just to make any order for reinstatement.