G Hudson v William Hill Organisation Ltd: 6008321/2024
EMPLOYMENT TRIBUNALS
Case No 6008321/2024
Between
Gareth HudsonClaimantWilliam Hill Organisation LimitedRespondent
Before
Employment Judge HolmesIn person for claimantMs A Smith (instructed by Counsel) for respondentDate 10 April 2025
REASONS
[1]By a claim form (professionally drafted) presented to the Tribunal on 12 August 2024 the claimant claimed that he had been unfairly dismissed by the respondent , without notice , on 17 May 2024. The claimant also claimed notice pay. The respondent admitted dismissal, but contended that the dismissal was for the potentially fair reason of conduct, and that it was fair in all the circumstances. In the alternative , any compensation should be reduced, by reason of his contributory conduct. Further potential issues as to remedy were also raised. The respondent also denied that the dismissal was wrongful, and denied that the claimant was entitled to any notice pay.[3]A final hearing was listed for 20 and 21 February 2025, and was held by CVP.[4]The claimant appeared in person, and Ms Smith of counsel appeared for the respondent. The respondent called Danielle Sayer, and Alexandra Freckleton , and the 1 of 32 claimant gave evidence, but called no witnesses. There was an agreed bundle, and references to page numbers are to that bundle. The Tribunal heard the evidence and the submissions over two days, and then reserved its judgment. The Employment Judge apologises for the delay in the promulgation of the judgment, occasioned by pressure of judicial business.[5]Whilst no List of Issues had been ordered (there had been no preliminary hearing) , Ms Smith formulated the issues as follows: Unfair Dismissala. What was the reason for the dismissal? The Respondent contends it was conduct. The claimant disputes this.b. If the reason was misconduct, did the Respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? The Tribunal will usually decide, in particular, whether: i. there were reasonable grounds for that belief. ii. at the time the belief was formed the respondent had carried out a reasonable investigation. iii. the respondent otherwise acted in a procedurally fair manner. iv. dismissal was within the range of reasonable responses.c. Is there a chance that the claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason?d. If so, should the claimant’s compensation be reduced? By how much?e. If the claimant was unfairly dismissed, did he cause or contribute to dismissal by blameworthy conduct?f. If so, would it be just and equitable to reduce the claimant’s compensatory award? By what proportion? Wrongful dismissalg. What was the claimant’s notice period?h. Was the claimant paid for that notice period?i. If not, was the claimant guilty of gross misconduct/ did the claimant do something so serious that the respondent was entitled to dismiss without notice? The Employment Judge agreed that these were indeed the relevant issues on liability. It was agreed at the outset of the hearing that the Tribunal would only consider liability, (save for issues of reduction for contributory fault and/or of Polkey) given the two day listing. 2 of 32[6]Having heard the evidence, read the documents in the bundle and considered the submissions of the parties, the Tribunal finds the following relevant facts:6.1 The claimant was employed as aa Team Leader at the respondent’s Licensed Betting Office (“LBO”) at Netherton , Bootle, Merseyside. His employment had started on 2 October 2027, and from 1 February 2023 he had held the position of Team Leader.6.2 The claimant’s employment was subject to a contract of employment (pages 48 to 49 of the bundle, in relation to his initial employment in October 2017), the relevant terms in respect of his Team Leader position being at pages 61 to 64 of the bundle.6.3 The claimant was subject also to the respondent’s Disciplinary Policy (pages 271 to 279 of the bundle). Whilst stated by Ms Sayer to be “non – contractual” its first page (page 271 of the bundle) expressly states that it forms part of the claimant’s contract of employment with the respondent.6.4 This document contains the following provisions: Gross Misconduct You should be aware that any breach of discipline itemised under this section will result in summary dismissal with no entitlement to notice: · Deliberate falsification of records, fraud, deceit or other dishonesty, during the course of employment. And · Acts of gross negligence that results in actual loss or could have resulted in loss to the Company. The respondent’s operating procedures and the duties of the Duty Manager6.5 The operation of the respondent’s LBOs was subject to the LBO Manual, which sets out the procedure that it required to be followed in the running of its betting shops. This includes security and cash control procedures. Various sections of this Manual are contained in the bundle between pages 74 and 270.6.6 By way of background, the LBOs feature self – service betting terminals (“SSBTs”) which enable customers to place bets themselves without the need for any interaction with a member of staff. If a customer wins on a betting slip they have obtained this way, there is then a process for them to be paid out, which requires the validation of the betting slip.6.7 That process is governed by Section 10 of the Manual (pages 229 to 231 of the bundle) , where the following appears (page 229 of the bundle): 7.0 Paying out a winning Betslip placed in your LBO. 3 of 32 All colleagues MUST validate the Betslip prior to payment in case it has been already paid-out/redeemed, re-cycled, or photo-copied. There follows a 6 step guide to how to pay out a winning slip, the last of which is to “Process through your EPoS Till” (page 231 of the bundle, EPoS being Electronic Point of Sale, known also as a “Betstation” or the “till”). The respondent regarded this final step as essential, as this formed part of its safeguards against money – laundering. Every LBO has a locked safe which stores up to £1,000 in it. Cash is stored inside the safe overnight.6.8 The Manual at Section 8 , headed “Administration” also required that Daily Security Checks were made (pages 123 to 127 of the bundle). This appears under section 4 – “Holdover/Bet & Security Checking”, where at para.4.4 the following appears: 4.4 Security Checks The following daily checks must be made on the previous day’s business.[1]Reconcile previous days paid winners and confirm previous days total on EPoS. See Part 8.3 of this section (Trading Summary).[2]Reconcile Gaming Machine receipts and Plus Terminal receipts and confirm they match previous day’s totals.[3]Cross reference that the previous day’s End of Day Gaming Machines and Plus Terminal reports matches the previous days Transfers report for Cash to Till and Credit Issued.[4]Check banking receipt matches previous day’s entry on EPoS. See Part 8.2 of this section (Transfers).[5]Check that the previous days Debit Machine Transaction receipts for both sales and refunds match the entries on the previous days Transfers Report. See Part 8.2 of this section (Transfers). Cross-reference with totals printed on the end of day Debit Machine report. See Part 13.12 of this section (Debit Machine End of Day Procedure).[6]Check previous days CashDirect Transaction receipts match the entries on the previous day’s Transfer Report. See Part 8.2 of this section (Transfers). Cross reference with the totals printed on the end of day CashDirect report. See Part 12.3 of this section (CashDirect End of Day Report).[7]Check all previous day’s slips for correct staking by using Slip Search facility and entering a stake of More Than 1p. See Section 7 (Payment), Part 6.1 (Using the Slip Search Facility). Any Differences found to the previous day to be entered in the tablet Diary and your Business Performance Manager informed immediately. 4 of 32 6.9 The Manual also contains provisions at Section 3 relating to security procedures. Part 14, 'Daily Business Checks' (pages 101 – 102 of the bundle) states: "The marksense form is an important tool for detecting and preventing errors at LBO level, thereby creating a safer working environment for you, your colleagues and your customers. The form MUST be completed by the Duty Manager every day for the previous day’s business. Each question must be marked as either Checked or N/A to ensure subsequent reports accurately reflect LBO performance… Discrepancies should first be investigated in the LBO and if an explanation cannot be found, it must be escalated to either your Business Performance Manager or Security Investigator at the earliest opportunity. Genuine errors should be recorded in the notes section on Maas360 on the shop tablet for reference." 6.10 Part 5, 'Cash Control' (pages 133 – 134 of the bundle) , provides: "All employees have individual responsibility for the monies they control and the slips they handle. Strict adherence to procedures and correct use of cash control will not only reduce instances of errors, but will also ensure that any such errors are directly attributable to the employee concerned." And (page 133 of the bundle) :(a) 5.1: Betstation - Each Operator is individually identifiable by the EPoS Betstation, which provides a record of all the transactions and slip interactions made by the Operator. On assuming responsibility for a Betstation the operator must first check that the cash is correct and perform a cash declaration in the presence of the previous Operator or the Duty Manager. If it becomes necessary to leave the Betstation, the Operator must ensure that the cash is locked away and the Betstation is signed off with either a full cash declaration or by using ‘temp off’. When a cash transfer is made, both parties must check it. Once the operator ceases to be responsible for a Betstation, the remaining cash must be agreed with either the new operator, or the Duty Manager."(b) 5.2: Safe - The Duty Manager can perform a Safe Declaration at any time. However, generally this should only be used at the end of the day, as all monies should be on the counter or in the locked insert. Upon selecting SAFE DECLARATION the Duty Manager will be prompted to enter the amount held in the Safe. On inputting the amount, the system will compare the amount declared to the amount expected and the results will be displayed. The Duty Manager can choose to accept any variance, re-enter the declared amount or cancel the declaration using the function keys." 5 of 32(c) 5.3: Insert - The Duty Manager can perform an Insert Declaration at any time. Upon selecting INSERT DECLARATION the Duty Manager will be prompted to enter the amount held in the Insert. On inputting the amount, the system will compare the amount declared to the amount expected and the results will be displayed. The Duty Manager can choose to accept any variance, re-enter the declared amount or cancel the declaration using the function keys. The Duty Manager has the overall responsibility for all money and transactions that take place in their LBO. The Duty Manager must personally check all monies and perform the relevant declarations. The Duty Manager must also ensure that the money in the Betstations is kept to a minimum and that any excess is secured in the insert or if necessary banked at the earliest opportunity. It is the Duty Manager’s responsibility to ensure that cash control is correctly administered." 6.11 Finally, at Part 18.0, under the heading “End of Day Procedures” (page 202of the bundle) , prior to closing, the Duty Manager must "Perform cash declarations on ALL Betstations (initiate search for discrepancies, etc.)." 6.12 The “insert” referred to above is a mini safe which is kept inside the main safe. However, the insert is an anti-hold up safe which has a time delay (of either 15 or 30 minutes, pending on the risk level of the particular LBO) to prevent and deter theft. The investigation into the claimant’s actions 6.13 The respondent has a Loss Prevention Team, whose responsibility it is to review transactions and look out for any discrepancies which may pose a threat to the business. The Team had, in late April and early May 2024 , been reviewing data from the claimant’s LBO, and noticed that there was unreconciled data generated on 29 April 2024. 6.14 The Team had reviewed data, gaming machines, SSBTs, transfer logs, and CCTV footage from the claimant’s LBO. A report was produced (pages 281 to 291 of the bundle). 6.15 The report (which is very data – heavy) basically established the following. The claimant was working in the Netherton LBO on 27, 28 and 29 April 2024. On 27 April 2024, he paid out two winning tickets that had been placed on an SSBT in the Netherton LBO. The tickets, which together amounted to £899.75, were paid in cash and scanned on the back office system but were not processed through the EPoS till as an SSBT payout (i.e. the claimant had failed to follow the above procedures) and, as a result, the tickets were not properly processed. The till therefore showed that it was short by £899.75. Also on 27 April 2024, the claimant processed a winning ticket of £200 through the EPoS till that had been placed on an SSBT in a different LBO. However, this ticket had already been processed through the EPoS till and paid out earlier that day by another member of staff (as a result, the tickets were not properly processed). On 29 April 2024, the claimant processed 6 of 32 3 SSBT and 15 gaming machine tickets through the EPoS till, which together amounted to £936.65. These tickets had already been processed for credit at the gaming machines. The EPoS till showed that the till had £200 more than the amount of cash that was physically in the till. £200 was therefore unaccounted for and could not be located. 6.16 The claimant’s line manager Rachael Tinsley , the Cluster Operations Manager, was informed of these issues on 6 May 2024, and she spoke to the claimant that day. She suspended him, and arranged for him to attend an investigation meeting the following day. A short note of that meeting is at page 280 of the bundle. 6.17 In light of the fact that the claimant had told Ms Tinsley that he had contacted the helpline , she checked with the helpdesk whether he had done so, and this was confirmed (pages 292 , 293 and 294 of the bundle). 6.18 The fact finding meeting was held on 9 May 2024 by Rachel Tinsley, at Old Roan. The claimant was not accompanied in this meeting , and notes were taken by Phil Spencer. The meeting was not concluded, but was resumed on 10 May 2024, with the same persons present. The notes are at pages 297 to 306 of the bundle . The claimant subsequently read and signed the notes. 6.19 In the meetings, the claimant stated the following. He had not processed the two SSBT tickets through the EPoS till on 27 April 2024. He had mistakenly processed another ticket for £200 through the EPoS till on 27 April 2024 (which had already been processed through the EPoS till and paid out). He had not completed any cash, insert or safe declarations from 27 April 2024 until the evening of 29 April 2024. He had filled out a business check form on 28 April 2024 and confirmed on this that business checks were completed, but he had not completed the checks correctly. He had therefore not noticed that the till showed that it was short by £899.75 until 29 April 2024 at around 7pm, when he did an insert declaration. He stated that when he noticed this, he contacted two other managers from other LBOs (Lee McGiveron and Elise Robinson) to ask what to do about the missing £899.75 and contacted the helpdesk (having not realised that this was due to him not processing the two SSBT tickets on 27 April 2024).He had processed the 15 gaming machines tickets through the EPoS till on 29 April 2024 (which had already been processed at the gaming machines) because he mistakenly believed that these had not been processed and had caused the deficit. In relation to the £200 that remained missing, he stated he may have "either overpaid someone or transfer", and denied taking it himself. 6.20 When Ms Tinsley asked the claimant why he had not followed procedures and not performed daily checks or any cash, insert or safe declarations between 27 and 29 April 2024, the claimant stated several times that he had "got/become lazy" (see pages 298, 300 - 302 of the bundle) . He also stated (page 301 of the bundle) that he "lacked motivation" on the relevant days and was tired. He said he had struggled with lack of motivation, and had been stupid and lazy. He said (page 305 of the bundle) he previously had appointments for ADHD and hemochromatosis but was not on any medication and was not going to the doctor about this. He said he admitted his mistakes, was sorry, and would make sure it did not happen again. 7 of 32 6.21 At the conclusion of the meeting on 10 May 2024 Ms Tinsley informed the claimant of his continued suspension, in a letter dated 10 May 2024 (page 307/308 of the bundle). In the meantime, on 9 May 2024 , Ms Tinsley interviewed Lee McGiveron (notes at page 294 of the bundle) and Elise Robinson (notes at page 296 of the bundle) about the telephone calls they had received from the claimant. 6.22 Ms Tinsley prepared an Investigation Summary Report , which is undated, at pages 309 to 311 of the bundle. That document included CCTV footage, the fact finding statements (ie. the notes) from Lee McGiveron and Elise Robinson, SSBT logs, a Transfer log, and an email from the Helpdesk. 6.23 In her report Ms Tinsley set out the allegations against the claimant , two of gross misconduct and one of misconduct, as follows: Allegation of gross Misconduct. More specifically:• Allegation of gross negligence for failing to record the correct levels of money in the LBO, by failing to complete safe and insert declarations between Saturday 27th April – Monday 29th April in Netherton LBO. Allegation of gross misconduct. More specifically:• Falsifying company records. More specifically, incorrectly recording business checks being completed on 28th April 2024 in Netherton LBO. Allegation of misconduct. More specifically:• Failure to follow the bet payment procedures, by wrongly reconciling 3 SSBT tickets and 15 GM tickets, to create a surplus to balance an unrecognised shortage between (sic) 6.24 She went on to set out the following sequence of events, dates and times, as 27th April two SSBT tickets not processed through epos - £899.75 27th April duplicate ticket SSBT for other shop processed for £200. Shop should of (sic) shown £700 variance. Monday 29th April 15 unreconciled GM tickets processed value of £936.65, resulting in shop balancing. 6.25 Ms Tinsley expressed her review in the report that she did not believe that the claimant had falsified any accounts, but had admitted to not checking monies from Saturday 27 to Monday 29 April 2024, had followed no procedures, had completed no declarations and had admitted to not counting the money. 6.26 The claimant was invited by letter of 13 May 2024, sent by email (pages 312, and 313 to 315 of the bundle) by Danielle Sayer to a disciplinary meeting on 17 May 2024. The claimant was sent supporting documentation, and told of his right to be 8 of 32 accompanied at the meeting. She set out the three disciplinary charges as set out in Ms Tinsley’s report above. It is unclear whether this documentation included Ms Tinsley’s Report at pages 309 to 311 of the bundle. 6.27 The meeting duly went ahead on 17 May 2024. The claimant did not request that any person accompany him in the meeting. Danielle Sayer conducted the meeting, and Phil Spencer took the notes, which are at pages 316 to 327 of he bundle, and which the claimant subsequently read and signed . 6.28 In the meeting at no point during the hearing did the claimant raise any issue about Danielle Sayer being the disciplinary manager, nor Phil Spencer being the note taker. 6.29 Danielle Sayer asked the claimant if there was any part of his role that he struggled with. He said "concentration sometimes" and said "years ago as a kid I thought I had ADHD". He said he had not been diagnosed for this. In relation to hemochromatosis, he said he was meant to have doctors' appointments for it but he did no go. He did not explain how his hemochromatosis affected him and he confirmed he had not discussed this with his line manager. 6.30 The claimant confirmed the correct procedure for paying out a winning SSBT ticket , and that on 27 April 2024, he did not process the two tickets on the EPoS till. 6.31 The claimant also accepted that he did not complete an insert declaration. He said he was doing something else and forgot about it. He said that he knew he had done "these mistakes" and said that he admitted them. 6.32 The claimant also confirmed he therefore did not know the till was short by £899.75, and only noticed on Monday night when he did an insert declaration. 6.33 Regarding the processing of a ticket for £200 from a SSBT in the Heritage LBO, the claimant said that he did not see that it had already been paid. He said he did not do a cash declaration and instead just counted the money in the till in his head. I confirmed that the £200 had still not been located, and remained unaccounted for. He said "I could have handed it out." 6.34 Danielle Sayer noted that during the investigation meeting, the claimant had said to Ms Tinsley (after she had noted that he had not done any cash declaration for 3 days up to Monday evening) "stupid, done before should have learned my lesson" . She asked him what he had meant by this. The claimant said that four years ago, he had not done an insert declaration and a discrepancy was found a few days later. 6.35 When she asked the claimant to talk her through the cash handling procedures and daily business checks that should be followed during shifts, he was able to explain both. 6.36 Regarding the daily business checks, the claimant said "me not doing [one] on Sunday [28 April, in respect of 27 April] has caused all this – did one on Monday for 9 of 32 Sunday. Saw £900 short Mon[day] eve." Danielle Sayer confirmed that he had ticked the boxes on the form to say he had completed the checks to the best of his ability, and the claimant agreed. He said on the Monday, he had completed an insert declaration and saw that the till was "well down". He said he phoned Ms Robinson and went through Monday's work and came to the conclusion the shortage was due to gaming machine tickets not being processed. 6.37 Danielle Sayer asked the claimant if he had anything to add, and he said his last yearly review was good, he had worked hard and had 100% attendance. He said, "3 days full of mistakes that I'm really sorry for and won't happen again." She asked the claimant if he agreed that he had failed to follow cash handling procedures on all three shifts, and he did. She asked if he agreed that this was gross negligence and he said yes. She asked the claimant if he agreed that he had ticked the form on 28 April 2024 to say that business checks had been completed but they had not been, and errors were there. He said yes. She asked the claimant if he agreed he had not followed bet payout procedures for three days and he confirmed that this was true and these had not been done correctly. 6.38 Having reached the point at which she felt that she had obtained all the material necessary to make her decision, Danielle Sayer adjourned the meeting. She does not recall the claimant saying that he had to collect his daughter at 14:45 before she adjourned. 6.39 Danielle Sayer come to the conclusion that that the allegations against the claimant were well founded that his conduct amounted to gross misconduct. The main reasons for this were: The claimant had a good understanding of the required processes around recording money levels in the LBO and when till, safe and insert declarations should be completed during shifts, and had completed mandatory security process training regarding this; The claimant had admitted that he had not completed these checks. In particular: (a) On 27 April 2024, he had not processed the two SSBT tickets through EPoS till. By failing to do this he put the business at a risk of loss, as they could be processed and paid out again; (b) On 28 April 2024, he did not do the daily business checks for previous day; (c) On 28 April 2024, he ticked the boxes on the form which said he had done the business checks;(d) On 28 April 2024, he did not do a safe declaration at in the morning or at the end of day, did not do any declarations during the day, and did not do the end of day cash/insert declarations; and(e) On 29 April 2024, he did not do a safe declaration in the morning and he did not do any declarations during the day until 19:00. 10 of 32 This was gross negligence , she considered, of his duties as a Team Leader. 6.40 The claimant had confirmed on the audit on 28 April 2024 that all business for the date stated on the audit checklist had been accurately checked following the audit guidelines. The claimant admitted that this was not the case and that, had the process been completed in accordance with the training he had received, the discrepancy would have been identified. The claimant had therefore falsified this document and this was gross misconduct; 6.41 She concluded that had the claimant followed the payout procedures on 27 April 2024, the shortage of £899.75 would not have occurred. Once the claimant discovered the deficit on 29 April 2024, he then incorrectly processed three SSBT tickets and 15 gaming machine tickets to create a surplus, in order to balance his till. 6.42 If the correct procedures had been followed in relation to locating cash deficits, the claimant would have become aware that these tickets had been processed through the gaming machines by customers throughout the day. 6.43 The claimant also said he noticed his till had a deficit by adding up the cash in his head and not accurately completing a cash declaration and then made a transfer of SSBT payout from another LBO for £200. If the claimant had correctly completed checks, he would have seen this payment had been correctly processed through EPoS earlier on in the day by another employee. 6.44 As a result of his negligence of the procedures, she believed, £200 remained unaccounted for and could not be located. On 27 April 2024, he did not do a safe declaration in the morning or at the end of day, did not do any declarations during the day, and did not do the end of day cash/insert declarations. 6.45 Danielle Sayer took into account how cash management procedures are extremely important to the respondent, and must be followed in order to keep money safe and keep accurate records, both to prevent the company from loss and to comply with anti-money laundering requirements. 6.46 She then considered what, if any, sanction should be applied. Having considered everything and the range of sanctions available to her, she decided that the most appropriate sanction was summary dismissal. 6.47 The main reasons why she decided that summary dismissal was the appropriate sanction were: The claimant had repeatedly been grossly negligent over the course of three days. Anything could have happened during that time in relation to the money in the LBO, and we would not have any record of it. This negligence caused a serious financial risk to the business; The claimant had admitted confirming that business checks had been completed in the Netherton LBO on 28 April when in fact they had not been. She considered it 11 of 32 extremely serious that he confirmed this without accurately following the correct process (even though he knew how to do the checks correctly). The claimant was a Team Leader and responsible as Duty Manager with a long length of service. He should have been fully aware of how important it was to follow then respondent's procedures but he did not seem to understand how serious his actions were. This was concerning and she did not believe the business could trust him to continue in his role, due to the risk of loss to the business. He had himself admitted that he had not learnt from failing to do an insert declaration previously. 6.48 For these reasons, she did not consider that a lesser sanction (such as a warning) was appropriate. In terms of demoting the claimant as an alternative sanction, this she considered would pose an ongoing risk to the business, as Cashiers are still accountable for the money in the LBO and were required to follow cash control procedures in the LBO. 6.49 Danielle Sayer did consider the mitigating factors put forward by the claimant, namely: He had been honest and admitted to the allegations; He had six years' service with the respondent and a clean employment record; He had some personal issues and periods of a lack of concentration that had impacted him on the relevant days; and He believed he may have ADHD and he had too much iron in his body. 6.50 She considered, however, that these points were not enough to excuse his conduct. He had not sought any treatment for any medical conditions, and had not, until the disciplinary process, made his employer aware of them. 6.51 Having decided that the claimant would be dismissed summarily, Danielle Sayer reconvened the meeting. At this juncture the claimant did refer to having to pick his daughter up from school. 6.52 Danielle Sayer announced her decision (noted at pages 325 to 327 of the bundle), advising the claimant that this was his last day of employment. He was also verbally advised of his right of appeal , to whom to make any appeal, and the time limit for doing so. 6.53 The outcome was also confirmed to the claimant by letter of 20 May 2024 (pages 329 to 331 of the bundle), in which the claimant’s right of appeal was also reiterated. 6.54 The claimant exercised his right of appeal, by an email addressed to Alexandra Freckleton on 20 May 2024 (pages 332 to 333 of the bundle). This is a somewhat narrative document, which does not instantly identify the claimant’s grounds of appeal. 6.55 The appeal was received by Alexandra Freckleton , Area Manager, and by letter of 21 May 2024 she acknowledged the appeal, and invited the claimant to attend 12 of 32 an appeal hearing on 27 May 2024 (pages 334 to 335 of the bundle). The claimant was informed of his right to be accompanied to the appeal meeting. 6.56 The claimant duly attended the appeal hearing, and on this occasion was accompanied by Tracy McCarthen, a work colleague. 6.57 Alexandra Freckleton was the Area Manager of the area in which the claimant’s LBO was located, and had met him previously. She had heard a grievance he had submitted in 2019. 6.58 Alexandra Freckleton discerned some 18 grounds of appeal in the claimant’s email appealing his dismissal. They were: 1.The investigation manager, Rachel Tinsley, stated in the meeting she did not believe the claimant had falsified accounts but then it got raised again at disciplinary by Ms Sayer. The claimant believed that, had Ms Sayer checked the investigation notes, she would have noticed that Ms Tinsley had stated she did not believe the claimant had deliberately falsified accounts; 2.The claimant claimed that Ms Tinsley and Mr Spencer had agreed, during the investigation, that only £135 had been unaccounted for but Ms Sayer stated it was £200 in the disciplinary meeting; 3.The claimant claimed Ms Sayer did not research the investigation as she told him that he could receive a first written warning, final warning or dismissal and Mr Spencer had intervened to tell her that a first written warning is not possible for gross misconduct acts; 4.The claimant believed Ms Sayer had already decided on the outcome before the meeting and was looking for an argument throughout the disciplinary meeting. He stated that Ms Sayer did not want to acknowledge any of the positive reviews he had with his line manager or his clean disciplinary record for the past 12 months; 5.The witness statements proved everything he had said was right; 6.The claimant stated that he had some issues with Ms Sayer previously where her and Paula Duffy tried to unfairly extend a final warning which had expired; 7.The claimant stated that he had had issues with Mr Spencer in the past regarding an attempt to give him a written warning for refusing to do a shift. The claimant thought that the reason Mr Spencer was involved as the note taker was because he ‘wanted [the claimant] gone’ from the company. The claimant claimed that the cluster was getting a new Cluster Operations Manager which was Mr Spencer, and he did not want to work with the claimant; 8.The claimant believed that it should have been a different Cluster Operations Manager taking the notes for the disciplinary as Mr Spencer had done them for the investigation; 13 of 32 9.The claimant believed the length of the adjournment at his meeting, which was 1 hour 35 minutes, was too long and done deliberately to stress him out. He said Ms Sayer asked him to come back at 13:45, after he informed her he had to collect his daughter at 14:45 and that he was not called back in until 14:30; 10.The claimant stated that on the 29 April 2024 he was not in the right frame of mind, unwell and not feeling himself. He said that he had time off for depression in the past which the company was aware of. He said he came into work as he did not want to let his manager down; 11.The claimant said that he had problems with his concentration which he felt was ADHD. This had not been medically diagnosed which is why he had never informed anyone, but two doctors told him he had it. He said he had hemochromatosis which the ADHD symptoms affect; 12.The claimant stated the till was reported faulty which resulted in the gaming machine transfers being completed by him as they were not showing on the till. The issue was fixed on the Tuesday, and he felt the money missing may be in these transfers which were not shown; 13.The claimant said that he felt his dismissal was due to his relationships with Ms Sayer and Mr Spencer. He stated that other colleagues had done no business checks, insert and cash declarations and had been given written warnings; 14.The claimant believed there were occasions which were more serious, such as the incident in the Pacific LBO and an unnamed Team Leader on Tik Tok in her uniform talking about giving herself easier shifts; 15.The claimant believed had this been another Team Leader on the Cluster they would have received a final written warning as he believed certain Cluster Operation Managers treated people differently; 16.The claimant believed that the outcome to his disciplinary should have been a final written warning and not summary dismissal; 17.The claimant felt that being told he was a risk to the business was incorrect and 'out of order.' He claimed that if Ms Sayer had looked at reports for the last two years, she would have known that he had grown professionally, worked hard, and stepped up; and 18.The claimant said that his suspension was a while after incident happened. He asked, if he was a risk to the business, why was he allowed to continue working for a week. 6.59 The appeal was heard on 27 May 2024. Alexandra Freckleton chaired it, with Julie Blaize present to take notes. The claimant attended with Tracy McCarthen as his companion. 14 of 32 6.60 The notes of the hearing are at pages 338 to 363 of the bundle. Alexandra Freckleton took the claimant through his appeal document, and asked him to expand upon the points he had made. 6.61 In particular: She asked the claimant why he believed that Ms Sayer had decided the disciplinary outcome before the hearing. He said because of her attitude and that if he said anything positive she changed the subject. She asked him why he thought Ms Sayer was 'looking for an argument'. He said he just found her rude and felt that she was not a nice person. She also asked the claimant why he felt that Philip Spencer (Cluster Operations Manager, and note taker during the disciplinary) wanted to 'get rid' of him. He said that Mr Spencer had previously given him a warning, which was subsequently 'dropped' by an Area Manager. He confirmed that he had never worked for Mr Spencer. He said he believed Mr Spencer just did not like him as he had phoned him in the past and he had not been polite. He confirmed he had no evidence to support his allegation that Mr Spencer wanted to dismiss him. In relation to the medical issues he had raised, the claimant said he was waiting for an appointment regarding a potential ADHD diagnosis. He said he had blood taken to take iron out of his blood but he had not been to the hospital to do this 'for ages' because he was too busy. The claimant also said he was aware of other colleagues not doing business checks and getting final written warnings. She explained that every case was different but asked if there was any case he wanted me to look at as part of his appeal investigation. He said no. The claimant said it was his opinion that certain Cluster Operation Managers treat people differently but he had no evidence of this. The claimant admitted that he had not done the business checks fully or done any insert declarations, and if he had done he would have found the issue. However, he said that he thought it was "really harsh" that this was deemed to be gross negligence and he should have got a final written warning. He said he did not think he was a risk to the business and he worked hard. 6.62 Alexandra Freckleton did not conclude the appeal at the end of the hearing, but told the claimant that she would investigate further, and would then send him her decision. She explained that as she was going to be on annual leave, the decision would not be given within the usual 10 days stipulated in the respondent’s Disciplinary Policy. 6.63 During the adjournment Alexandra Freckleton interviewed Danielle Sayer on 10 June 2024, the notes of which are at pages 368 to 369 of the bundle. In this interview Danielle Sayer confirmed that £200 remained unaccounted for at the LBO. She also refuted any suggestion that she had been rude, or argumentative, or had made her mind up before the hearing. 15 of 32 6.64 Alexandra Freckleton also interviewed Philip Spencer on 10 June 2024, the notes of which are at pages 370 to 371 of the bundle. He too disputed that Danielle Sayer was looking for an argument, all she had done was to stop the claimant speaking over her. He had been involved in an investigation of the claimant in 2018, but he did not know what had become of it. The claimant had also been referred to a disciplinary in 2019, but no action had been taken then either. 6.65 Alexandra Freckleton also spoke to Ms Tinsley about the claimant’s suspension, which she confirmed she carried out the same day as she had been notified of the issues by the security team (i.e the Loss Prevention Team). 6.66 Alexandra Freckleton then considered her decision on the appeal. She considered each one separately. 6.67 Her findings were (using the numbers that she ascribed to the grounds , as set out in para. 6.58 above, and without repeating then in full) : Ground 1: Ms Tinsley had indeed dropped the falsifying accounts regarding the gaming machine tickets allegation at the conclusion of the investigation. This allegation was not taken forward to the disciplinary hearing. The only allegation regarding gaming machines considered at the disciplinary hearing was the misconduct allegation regarding the claimant's failure to follow bet payout procedures by wrongly reconciling gaming machine tickets to balance an unrecognised shortage. Ms Sayer made no finding that the claimant had falsified accounts regarding this. Ground 2: Alexandra Freckleton confirmed that it was £200 that remained unaccounted for. In the investigation, Ms Tinsley had referred to an amount of £135, however a further £65 was unaccounted for due to a surplus shown from one of the gaming machine transfers that the claimant put through. Ms Tinsley had confirmed this in the investigation summary . She, therefore, did not uphold this ground of appeal. This was a loss to the business. The claimant was not accused of stealing this, but he was responsible for this loss because his failures to follow the procedures and perform declarations meant that the cash that was in the LBO over the three days was not recorded correctly, and so it was not possible to work out where the money had gone. Ground 3: Ms Sayer confirmed interview that she had accidentally said a first written warning could be given because she was reading out a script at the very start of the hearing. She was aware this sanction was not likely to be appropriate if she had found that the claimant has committed gross misconduct, but if she had not found that either of the two gross misconduct allegations were proven then she could have given a first written warning in respect of the misconduct allegation. Ground 4: 16 of 32 The claimant had provided no evidence as to why he believed Ms Sayer had made a pre-determined decision or was looking for an argument. He had simply said his opinion was that she was rude and not a nice person. Ms Sayer and Mr Spencer had confirmed that the meeting was conducted professionally and as with any other meeting. The claimant may have misinterpreted Ms Sayer asking the Claimant to allow her to finish her questions before answering as her being rude, however she did not believe that such requests are unreasonable at all. From her review of the disciplinary hearing notes, she could see that Ms Sayer was trying to understand any mitigation from the claimant and was asking for his explanations as to why he had not followed the procedures. She could find no evidence to support the claimant's claim that Ms Sayer had made a pre-determined decision. This was supported by the fact that she took her time to consider all of the evidence before coming to a decision in the adjournment. If she had already made her decision, the adjournment presumably would have only been a few minutes. Ground 5: Ms Tinsley had interviewed Lee McGiveron and Elise Robinson during the investigation regarding the suspicions that the Claimant had deliberately falsified accounts by reconciling gaming machine tickets on 29 April 2024. These confirmed that the Claimant had contacted them about the discrepancy, and had therefore not tried to conceal this. This was taken into account by Ms Tinsley and was why the allegation of falsifying accounts was not taken forward, and instead the allegation was downgraded to a misconduct allegation of failing to follow bet payout procedures. These statements therefore had no bearing on the decision at the disciplinary meeting other than to support the claimant's mitigation that he had reported the issue when he became aware of it. Ground 6: The claimant claimed in the appeal hearing that, in relation to a previous disciplinary process in 2020, Ms Duffy had informed him on the phone that Ms Sayer had told her that he would be given an extended final warning. However, she understood that Ms Duffy was the disciplinary manager, and so the decision on the sanction should not have been influenced by anyone else. Ms Duffy was no longer with the business, so she could not interview her regarding this point. However, she could find no evidence that the claimant had ever raised issues with Ms Sayer previously and he had not requested for another manager to conduct the disciplinary hearing after being informed in the invitation letter that Ms Sayer would be the disciplinary manager. Ms Sayer had also confirmed in my interview that she conducted the meeting the way she would any other, was looking out for mitigation for the claimant in order to apply a lesser sanction, and took her time in making the decision. She was satisfied that Ms Sayer was suitably impartial and did not have any issue with the claimant. She had never worked with the claimant directly so it was highly unlikely she would have any issue with him. Ground 7: Whilst Mr Spencer recalled conducting an investigation into the claimant in 2018, he did not recall the outcome of the disciplinary hearing. She did not believe that, just because Mr Spencer had concluded that there was a case for the claimant to answer 17 of 32 following an investigation, this showed he had a personal issue with the claimant. Mr Spencer had also informed me during my meeting with him that he was looking forward to working with the claimant as one of the Team Leaders on his new cluster. The claimant had also said in the hearing that it was his opinion that Mr Spencer did not like him because he had been impolite to him in the past when the claimant had called him. The claimant could provide no evidence to support his claim that Mr Spencer did not want to work with him, and given Mr Spencer's comment in our meeting she did not believe that this was the case. Ground 8: Under the respondent's procedures, there is no requirement for the note taker in the investigation meeting to be different from the note taker in the disciplinary hearing, as a note taker is just that – they do not make any decisions in relation to the investigation or the disciplinary hearing. In her experience, this was quite common. Ground 9: There is no set timescale for meeting adjournments. The purpose of the adjournment was to allow Ms Sayer to review the case, consider the evidence and make a decision. She believed the fact that Ms Sayer took 1 hour and 35 minutes to come to a decision demonstrated that she took into consideration all of the evidence presented to her before coming to that decision. She did not believe that Ms Sayer purposely spent a long time to intentionally make the situation more stressful for the claimant. Ms Sayer could only recall that the claimant mentioned that he needed to pick up his daughter after the adjournment. Mr Spencer recalled the claimant mentioning it before the adjournment but could not recall the claimant giving a specific time. She believed that Ms Sayer would have adjourned the meeting until the following day if the claimant had informed her that he had to pick up his daughter at a specific time. Ground 10: During the appeal hearing, the claimant explained that he had a 100% attendance record for the previous 15 months and knew how hard it was to find cover, so he did not want to call in sick. Whilst she appreciated that he did not want to let his manager down, being unwell was an important reason for him not to be in work and he should not have attended if he felt unwell. By attending work he was declaring himself fit to perform all of his duties. The potential impact of finding cover should not have had any bearing on his decision in this regard. Ground 11: The claimant confirmed in the hearing that he had not received a diagnosis for ADHD and he was waiting for an appointment regarding this. He had not attended treatment for his hemochromatosis 'for ages' because he was busy and he had not made anyone at the respondent aware of how this affected him at work. As he had not been medically diagnosed with ADHD, and the claimant had never made his line manager aware of any concerns around this or him struggling to concentrate, she did not feel it was appropriate to take this into consideration when considering the allegations. Even 18 of 32 if the claimant was struggling to concentrate, he was aware of the required procedures and had just chosen not to do them, which was gross negligence. Ground 12: During the appeal hearing the claimant said that transfers had not been going through on the following Wednesday and he had spoken to a Cluster Operations Manager about this. He said that the Helpdesk had done a full reset of the tills on Tuesday, and suggested that due to this the till might not have shown certain transfers (i.e. this was where the missing £200 went). However, she confirmed that there was no accusation that the claimant had taken the £200 for personal gain and the claimant was not dismissed for this reason. This was just relevant to show how the claimant's negligence in not following procedures or conducting business checks/declarations meant that it was the case that £200 could not be located and caused a loss to the business. Ground 13: In the meeting Alexandra Freckleton asked the claimant for names of employees who the claimant said he knew had received written warnings for not completing business checks. She explained that all meetings with colleagues are private and confidential, and every case is treated individually. The claimant mentioned one of his Cashiers, named Elliot. However, he told her he did not want her to look into this and did not provide any further details. The claimant also said he felt that if other colleagues had done the same actions as him, they would not have been dismissed. He did not provide any evidence that this would be the case. The claimant also provided no evidence there was an issue with his relationships with Ms Sayer or Mr Spencer. Neither manager had been the claimant's direct line manager in the past and she could find no evidence whatsoever to support this claim. In addition, the claimant was given notice of who would be acting as disciplinary manager and note taker in his disciplinary invite, and he raised no concerns regarding this. Again, as note taker, Mr Spencer would have no influence on any decision made by the disciplinary manager. Ground 14: Alexandra Freckleton took the details of these allegations from the claimant and passed the matter on to an independent Cluster Operations Manager to investigate separately. She informed the claimant during the hearing that the outcome of any case such as this would not have any impact on his case. The claimant did not inform her of any other matters. Ground 15: The claimant again stated that this point was just his opinion and he did not have any evidence in relation to it. Ground 16: The claimant confirmed that he was fully aware of the respondent's counter control procedures. Despite this, he had admitted to not performing the business checks fully 19 of 32 or completing any safe and insert declarations during the relevant shifts, but felt the allegation of gross negligence was harsh. It was Alexandra Freckleton’s belief that this did amount to gross negligence and that the sanction of dismissal was appropriate. As an experienced Team Leader, the claimant was expected and trusted to fulfil his duties and follow procedures, and he had neglected these. It was not just one occasion that he had not followed procedures, it was multiple times across three days. The procedures are there to protect both the business and his colleagues. The respondent is a cash heavy business so cash control is really important. Performing insert declarations in particular is the most basic operation expected of anyone working in a shop. Further, as a Team Leader, the claimant was responsible for all of the money in his shop, and so should have been checking the amount regularly. By not following these procedures he was also setting a bad example for his team, and this exposed the business to risk. It would only take one other person to notice that he was not following the procedures and take the opportunity to take money out of the till or safe. The respondent does get cases of staff fraud and this can easily happen when its procedures are not followed. Ground 17: As part of any disciplinary hearing, the disciplinary manager would be provided with the employee's personnel file and so they would be aware if a colleague did not have any live warnings. This was taken into account by Ms Sayer. Alexandra Freckleton agreed that the claimant was a risk to the business. He had confirmed that his actions had left company money not accounted for correctly. This was a risk to the business. She was also concerned that the claimant did not seem to understand how his negligence was a risk to the business. He just did not seem to grasp how serious it was and it was a real concern to her that he could do it again in the future. He had referenced in the investigation meeting that he had not followed the procedures because he had "got lazy" which indicated to her that he just could not be bothered to do what he needed to, to follow them. Ground 18: From her investigations, Alexandra Freckleton understood that the Security department had reviewed the transfers and noticed the discrepancy on 29 April 2024. They had then investigated this and through their investigation, which concluded on 6 May 2024, they identified that the claimant was involved. They had informed Ms Tinsley of this on 6 May 2024. Ms Tinsley had reviewed the evidence and then visited the LBO on the same day and suspended the claimant regarding the matter. There was therefore no delay in suspending the claimant. 7. Those then are the relevant facts. There was little disagreement on the facts, and nothing in this judgment turns upon the credibility of any witness or party. The submissions.[8]The parties made submissions. For the respondent, Ms Smith had prepared a written Legal Skeleton , which is available on the Tribunal file, and need not be rehearsed in detail here. In summary, it sets out the issues (as at para. .. above) , and then the relevant legal principles. 20 of 32[9]Reference is made to the leading case of British Home Stores v Burchell [1978] IRLR 379 which sets out guidelines for the approach of the Tribunal in cases of misconduct:a. the employer must have an honest belief at the time of dismissal that there was a fair reason to dismiss;b. the employer must have reasonable grounds for holding that belief; andc. the employer’s reasonable grounds must be based on a reasonable investigation.[10]Ms Smith went on to deal with the reason for the dismissal. It is for the employer to show the reason for the dismissal is a potentially fair one, the burden of proof at this stage is not a heavy one. It does not require the employer to have to prove that the reason actually did justify the dismissal at this stage (Gilham and ors v Kent County Council (No.2) 1985 ICR 233).[11]Ms Smith went on to set out the caselaw on reasonable grounds, and the need for a reasonable investigation, citing Royal Society for Protection of Birds v Croucher [1984] IRLR 425 as authority for the proposition that is the misconduct is admitted, the need for an investigation is diminished.[12]Turning to the sanction of dismissal, and the Tribunal’s approach in general, she referred to Iceland Frozen Foods Ltd v Jones 1983 ICR 17 where the EAT said t: ‘We consider that the authorities establish that in law the correct approach for the… tribunal to adopt in answering the question posed by [S.98(4)] is as follows:(1) the starting point should always be the words of s.98(4) themselves;(2) in applying the section [a] tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the… tribunal) consider the dismissal to be fair;(3) in judging the reasonableness of the employer’s conduct [a] tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;(4) in many (though not all) cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another; 5) the function of the… tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.’[13]She went on to submit that the Tribunal must look at the circumstances in the round, and procedural imperfections do not automatically render dismissals unfair (Taylor v OCS Group Ltd 2006 ICR 1602). The band of reasonable responses test applies to the procedure as well (J Sainsbury plc v Hitt 2003 ICR 111). 21 of 32[14]On length of service, this can be relevant Strouthos v London Underground Ltd 2004 IRLR 636. However, an employee’s long service can also count against them. In Somers v Metropolitan Police Authority ET Case No.2318747/10, it was concluded that with her long years of service she really ought to know and indeed did know what was her duty.[15]On the issue of consistency of treatment, Ms Smith cited the case of Hadjioannou v Coral Casinos Ltd 1981 IRLR 352, in which the EAT provided guidance to Tribunals in assessing the question of inconsistent treatment, and highlighted three types of such:a. Where employees have been led by an employer to believe that certain conduct will not lead to dismissal (false sense of security).b. Where evidence of other cases being dealt with more leniently supports a complaint that the reason stated for dismissal by the employer was not the real reason.c. Where decisions made by an employer in truly parallel circumstances indicate that it was not reasonable for the employer to dismiss.[16]Turning to the claim for notice pay, she submitted that when considering whether the dismissal was wrongful, the Tribunal ought not to be concerned with the reasonableness of the employer’s decision to dismiss, but rather: was the employee guilty of conduct so serious as to amount to a repudiatory breach of the contract of employment entitling the employer to summarily terminate the contract (Enable Care and Home Support Ltd v Pearson EAT 0366/09).[17]Only repudiatory breaches by employees will justify summary dismissal (Laws v London Chronicle (Indicator Newspapers) Ltd 1959 1 WLR 698).She went on to refer to Briscoe v Lubrizol Ltd 2002 IRLR 607 in which the Court of Appeal approved the test set out in Neary and anor v Dean of Westminster 1999 IRLR 288: the conduct ‘must so undermine the trust and confidence which is inherent in the particular contract of employment that the [employer] should no longer be required to retain the [employee] in his employment’. This is an objective test.[18]Of potential relevance in the context of the facts of this case, in Adesokan v Sainsbury’s Supermarkets Ltd 2017 ICR 590, the Court of Appeal held that the focus must be on the damage to the relationship between the parties and that in a case of alleged gross negligence the question will be whether the dereliction of duty was ‘so grave and weighty’ as to justify summary dismissal.[19]Whilst seniority may be relevant to whether a summary dismissal was justified, length of service was not, Ms Smith citing the relevant cases where these principles are to be found.[20]Moving on to the facts, Ms Smith submitted that whilst it did not seem that the reason for dismissal was in dispute, the claimant had challenged it. When it was put to him that Danielle Sayer believed that the claimant had committed misconduct, the did not dispute this. The Tribunal should have no difficulty in finding that the reason for the dismissal was the claimant’s conduct. 22 of 32[21]The claimant had accepted that he was aware of the policies, knew what was required of him under them, and what he had not done. There was a genuine belief in his misconduct, and no evidence of any malicious intent on the part of Danielle Sayer, only what the claimant “felt”. In any event this issue was investigated in the appeal, and found not to have any merit.[22]The respondent formed this belief on reasonable grounds, and this could not be contested. A reasonable investigation was carried out, with investigation, disciplinary and appeal hearings being held, all in accordance with the ACAS Code of Practice.[23]The only issue raised by the claimant was that he had not been provided with the investigation report. She submitted that this made no difference. The claimant never asked to view the CCTV footage but was aware of it. In terms of the Loss Prevention Report, the claimant did not have this, but this does little more than set out the data which led to the findings which the claimant does not actually challenge.[24]Turning to his complaint that the Policy requires an appeal outcome within 10 days, the claimant was told this may be the case, and , in any event he had the outcome by 13 June 2024 following the hearing on 27 May 2024. He had raised 18 grounds of appeal, and it was not unreasonable for the respondent to have to take some time to consider them all.[25]In relation to the claimant’s claims that he was treated more harshly than others were in similar circumstances, he can point to no other cases which would enable the respondent to investigate whether there is any validity to this point. Alexandra Freckleton, in any event, has considerable experience as an appeals officer, and was not aware of any comparable cases.[26]The test, of course, is whether the decision to dismiss fell within the band of reasonable responses .The respondent’s case was largely accepted by the claimant, in terms of the failures on his part to follow the mandatory steps in the procedures laid down by the respondent, and he knew what such failures could lead to in terms of the risk of fraud, money laundering, and allegations of theft being made against either himself, or other members of staff. He knew the Manual, and how important it was to follow it. he had, in his own words, not learnt his lesson from a previous instance, before his promotion, of failure to follow the procedures laid down. He had referred to himself as “lazy”. The respondent was entitled to take all this very seriously, and to consider that it amounted to gross negligence, resulting in a loss of £200, which could not be accounted for, and other risks to the business.[27]Turning to the mitigation that the claimant advanced, two key aspects were his length of service, and his clean disciplinary record. The respondent’s witnesses had taken these matters into account, as can be seen in the outcome letters ,but had found that they were not enough to change the decision to dismiss.[28]In relation to the claimant’s health, the test o be applied is not whether another employer would have looked into this issue further, but whether the respondent’s treatment of this issue was within the band of reasonable responses. She submitted that it was. There are two aspects to this. The first is whether the respondent did take this into account in making its decision, and the second is whether it should have investigated further. 23 of 32[29]On the first issue, the respondent, it was submitted, clearly did, as the evidence shows. Again, however, the view was taken, and reasonably taken, that this did not mitigate the seriousness of the claimant’s conduct.[30]On the second issue, as it was , the claimant has never put forward any medical evidence, and when asked about this, told the respondent that he did not have any. He was vague and unclear. He had not had any time off sick, and , indeed, by coming into work had effectively told the respondent that he was fit enough for work.[31]All this was taken into account by the respondent. There was no medical evidence, and the claimant had himself said that he had got “lazy”. He produced no diagnosis, and no evidence of any treatment. The decision to dismiss in these circumstances cannot be outside the band of reasonable responses.[32]In the alternative, if the dismissal were to be found to be unfair, the respondent will argue, on the basis of Polkey that the claimant would have been dismissed in any event. The claimant has produced nothing to show what would have happened had the respondent investigated the medical issues any further, and the Tribunal has no way of knowing what any referral to Occupational Health may have led to.[33]Finally, the respondent would argue for reduction in any award (it was not clear if she meant both the basic and compensatory awards) because the claimant , on his own case, had not “learnt his lesson”, and had put himself, his colleagues and the respondent’s LBO that he managed at serious risk of loss, fraud, and allegations of theft.[34]Turning finally to claim of wrongful dismissal, Ms Smith made the same points as she had raised in relation to contribution, in terms of the claimant’s conduct. The caselaw makes it clear that conduct which leads to a loss of trust and confidence can justify a summary dismissal. It is clear that the claimant’s conduct did that. The Tribunal applies an objective test .[35]The respondent’s policies and procedures are there for key reasons. She referred to paras. 29 and 31 of her Submissions. The claimant as a Team Leader was to set the standards for all of his staff, and he was there to manage them.[36]Ms Smith concluded by referring the Tribunal to the case of Lawless v Holden Law Ltd ET Case No. 2305777/2021 , which although a first instance case she nonetheless relies upon as persuasive of the approach the Tribunal should take. The claimant’s submissions.[37]As he was told, the Tribunal did not expect the claimant to respond on legal issues, and he confined himself to addressing the facts, and why his dismissal was unfair , as he saw it.[38]The claimant had obviously had some assistance in formulating his submissions, as he had when commencing the claims, and had been provided with some written material from which he was reading, (which, of course, is perfectly acceptable).[39]He started by submitting that his dismissal was unfair and disproportionate, given his long service, and his record. There were procedural flaws in his dismissal , and 24 of 32 differential treatment. The respondent had failed to consider is health issues, and technical issues. The dismissal was substantively and procedurally unfair. The claimant had been treated more harshly than other employees who had breached cash handling procedures. The claimant had raised this in his appeal letter. The respondent , however, had failed to investigate these claims, and no meaningful review was carried out by the appeal. This failure of the respondent to act consistently breached the principles in British Home Stores v Burchell.[40]The claimant referenced pages 309 to 311 of the bundle, and pointed out that Danielle Sayer did not believe that the claimant had deliberately falsified the accounts. He also referred to pages 294 to 296, which show that he sought advice once he realised that there was an issue with the till. He had tried to resolve these issues in good faith.[41]He went on to point out how one of the allegations was downgraded to misconduct, where a final written warning or demotion would have been the more appropriate sanction.[42]He acknowledged that he had made mistakes during his shifts, but this should be mitigated by various factors. He was affected by his undiagnosed ADHD, and his hemochromatosis, which was mentioned in his disciplinary hearing. he had admitted his mistakes, and had been honest.[43]He had been the victim of bias and lack of partiality. Danielle Sayer had already decided the outcome before the disciplinary outcome, and appeared to be determined to dismiss him.[44]The respondent had failed to carry out further investigations, into the technical issues, and his health issues.[45]The claimant referred to page 278 of the bundle, where, he pointed out, the Policy allows for a written warning for misconduct, and it was unfair of the respondent to by – pass this option.[46]The claimant recited s.98 of the Employment Rights Act 1996. He submitted that the respondent had not met the standards of reasonableness required, and had acted inconsistently with other disciplinary cases. The decision was based upon flawed evidence, for example, the change in the discrepancy from £35 to £200.[47]The claimant went on to refer to the ACAS Code of Practice, and alleged that the respondent had broken it by appointing a biased manager, failing to investigate adequately, and ignoring inconsistencies in the evidence. Vital information was not included in the evidence, although he did not specify what this was.[48]The respondent had breached its own contract, because he had not been provided with the outcome within 10 days, it had taken 16 days. The medical issues raised had not been taken into account. The appeal had not been thorough, two other members of staff had not bene interviewed. 25 of 32[49]If the claimant did present a risk to the business, he would not have got two promotions. Whilst he had received a written warning four years ago for not doing the required checks, in 61/2 years this was the only issue on his record. The Law – the statutory provisions.[50]The relevant provisions of the Employment Rights Act 1996 are set out in the Annexe to this judgment. Discussion and findings.[51]The first issue for the Tribunal to decide is whether the respondent has shown, the burden being upon it to do so, a potentially fair reason for dismissal. The reason relied upon is conduct. Whilst it appeared that the claimant had not really challenged that this was the reason for his dismissal, he did so in para. 18 of the Particulars of Claim (page 21 of the bundle), claiming that the true reason was “a personal dislike from his manager”. This manager was not identified in the pleading.[52]In his witness statement , however, the claimant identifies the manager as being Danielle Sayer, and states that she had “issues” with him ever since he had a chest infection “several years ago”, and phoned her two hours before his shift was about to start. He says that this has caused her to have a personal issue with him ever since.[53]When this was put to Danielle Sayer she struggled to recall it, but denied that it had any bearing upon her decision.[54]The Tribunal has no hesitation in rejecting the suggestion that the claimant was dismissed because of some personal animosity. Aside from one very stale incident “several years ago”, the claimant cites no examples of this alleged animosity. Quite aside from that, there is the inescapable fact that , on his own admission, there were issues in relation to his failure to follow the respondent’s accounting procedures over the weekend of 27 to 30 April 2024. The action taken against the claimant was not initiated by Danielle Sayer, it was in initiated by Debbie Tinsley, and she only took action because of the Loss Prevention Team alerting her to the problems. In short, none of this has been “made up” or created, it happened, and the claimant admitted that it did.[55]The Tribunal is quite satisfied therefore that the claimant’s conduct was indeed the reason for his dismissal, and proceeds to the real issue in the case, namely whether the dismissal was fair in all the circumstances.[56]The claimant is not a lawyer, and is not legally represented. His case on unfairness is as set out in his submissions above, and is , in summary, that there were the various procedural and substantive defects that he has raised.[57]The Tribunal, being mindful that it does not stand in the shoes of the employer, and decide what it would have done, but considers whether the dismissal , in both procedural and substantive aspects, fell within the band of reasonable responses.[58]To start with, the Tribunal will look at the procedure. The claimant in para. 16 of his witness statement set out why he considered that investigation and the process 26 of 32 adopted by Danielle Sayer was procedurally flawed at paras. 16.1 to 16.4, where he says: 16.1. The Loss Prevention Department report (Pages 281–291) did not provide clear metrics or evidence supporting the allegations. No detailed reconciliations or records were presented to substantiate the claims of monetary discrepancies. 16.2. Witnesses who were on duty during the relevant shifts, such as colleagues working alongside me, were not interviewed comprehensively. During the appeal process my witnesses were not contacted by the area manager This represents a failure to conduct a fair and thorough investigation. 16.3. The Respondent breached its disciplinary policy by delaying the outcome of the hearing. While the policy specifies a 10-day timeline, I received the decision 17 days after the hearing (Page 329). 6.4. Additionally, I was not provided with the investigation report or supporting evidence ahead of the disciplinary hearing. This failure contravenes the ACAS Code of Practice and placed me at a significant disadvantage in preparing my defence.[59]The Tribunal does not agree. In terms of the Loss Prevention Department report, it contains much data, which shows where the issues were. In any event, the claimant accepted that he had not carried out the correct procedures.[60]The Tribunal does, however, accept that the claimant may not have been provided with the Investigation Report i.e. that completed by Ms Tinsley, at pages 309 to 311 of the bundle, although in evidence he was less than clear about this.[61]That, however, is not, the Tribunal considers , of great importance, as what that report in essence did , was to formulate the disciplinary charges which the claimant was then to meet in his meeting with Danielle Sayer. The charges are set out in the invitation letter, and the claimant was provided with the notes of the interview he had with Ms Tinsley. It is clear from what followed that the claimant was perfectly capable of understanding what he was alleged to have done or failed to have done on the three days in question, and was able to give a full account. The upshot of all this, of course, was that the claimant admitted that he had indeed failed to follow the relevant procedures required in the Manual. He needed no further explanation, or the findings in Ms Tinsley’s report to enable him to understand the charges against him, or to respond fully to them. That he has not, since seeing this Report , identified anything that would have made any difference (save, perhaps for viewing the CCTV footage, which would not have made any difference) , identified precisely how this failure, if such it was, handicapped the claimant’s ability to respond to the allegations rather highlights how this failure is inconsequential. A further point is that in the appeal the claimant was clearly able to identify many points (some 18 in all), and raises nothing to 27 of 32 which the earlier provision of this Report would be relevant. Indeed, it seems possible that the claimant had sight of this report before the appeal, as he was able to raise, as one of his grounds, the change in the charges from what Ms Tinsley had originally proposed.[62]Finally, whilst it could be argued that the Tribunal, if of the view that the respondent did not provide the claimant with the Report when it should have done, i.e before the disciplinary meeting with Danielle Sayer, should find that the dismissal was unfair, and deal with the issue of what difference it would have made at remedy stage, applying Polkey , the Tribunal bears in mind the dicta in Taylor v OCS Group Ltd 2006 ICR 1602 cited by Ms Smith, to the effect that the Tribunal should look as the issue in the round, and that not every procedural imperfection should render a dismissal unfair. The Tribunal takes that approach, and considers that this defect does not render the dismissal unfair. If, of course, it is wrong in this finding, it would follow that , on remedy, the Tribunal would find that this defect made no difference, the claimant would have been dismissed in any event, and would make a 100% reduction on the grounds of Polkey.[63]In terms of witnesses not being interviewed, the claimant has not explained who should have been, and what they would have said. Again, given his own admissions of what he failed to do, the Tribunal cannot see how this mattered.[64]In terms of the delay in providing the outcome of the hearing, which the claimant claims was 17 days after the hearing, when the respondent’s policy specifies 10 days, he is, with respect , wrong on this. He was given the outcome of the disciplinary hearing on the day, 17 May 2024, and this was confirmed to him by letter of 20 May 2024. He clearly got that letter that day, because he appealed that same day, 20 May 2024.[65]It seems that the claimant is probably confusing the appeal outcome, which, the respondent accepts , was a little late, because Alexandra Freckleton needed to carry out further enquiries. The 7 day delay, in those circumstances, does not render the dismissal unfair.[66]Turning back to the investigation, as noted already, the claimant admitted that he had not followed the correct procedures. It is difficult, therefore to see what more he believes the investigation should have uncovered.[67]Further, the Tribunal bears in mind not only the investigation that was carried out before the dismissal, and was before Danielle Sayer, but also that carried out by Alexandra Freckleton for the appeal. She did not , as she could have done, simply heard the appeal, and formed her own view on the papers before her. She did rather more than that. She investigated the points raised by the claimant in the appeal. She interviewed Danielle Sayer and Phil Spencer, and made other enquiries into matters raised by the claimant .[68]All in all, and applying the test to be applied, the Tribunal is quite satisfied that, in both the original investigation, and the enquires then made for the appeal, the respondent carried out a reasonable investigation. In essence, in terms of what the claimant had done or failed to do, in terms of following the respondent’s procedures, 28 of 32 the claimant accepted that he had done so. That is a major factor in the Tribunal’s assessment of the reasonableness of the respondent’s investigation.[69]The Tribunal is thus satisfied that the respondent did believe, on reasonable grounds, after a reasonable investigation, that the claimant was guilty of misconduct. The term “gross” is not relevant at this stage, as the test for unfair dismissal does not require “gross” misconduct to be established, it simply requires that conduct be the reason. Once conduct is established, it is then a matter for the Tribunal to assess whether dismissal for the conduct that the respondent has found was fair in all of the circumstances, again applying the range of reasonable responses test.[70]This really, the Employment Judge considers, is the nub of this case. The claimant considers that summary dismissal was too harsh, that some lesser penalty could and should have been imposed.[71]So the Tribunal has to ask whether dismissal in these circumstances was outside the band of reasonable responses. That test, of course, highlights how one employer may take one view, and another take another view, but that does not make either view outside the range of reasonable responses.[72]The Tribunal considers that the respondent was entitled to take a serious view of the claimant’s conduct. He accepted that he knew , and had been trained in, the relevant procedures , but had not carried them out. He also volunteered that something akin to this had happened before, when he was not in a managerial role.[73]The respondent considered, and was entitled to consider, given the nature of its business, and the very clear terms of its policies on accounting procedures, that the claimant’s failings were very serious. Whilst it was accepted that he had not stolen any money, his failings exposed the respondent to the risk of theft, and non – compliance with money – laundering provisions.[74]A factor which clearly played a large part in the decision to dismiss was that the claimant’s failures occurred over 3 days. This was not a one – off, it was a series of failings over a 3 day period. The respondent took the view, and was entitled to , that this seriously dented the confidence that it could have in the claimant going forward as an employee.[75]That means that it could not have confidence in the claimant in any role, as cash and accounting procedures apply at all levels, and are not confined to managerial roles. Indeed, the claimant himself admitted to having previously failed in this way when in a lower role.[76]The Tribunal agrees with the respondent’s view that the claimant did not seem, and perhaps still does not, to appreciate the gravity of his failings, seeming to think that if he did not steal any money, his conduct was less serious. The respondent does not see it that way, and , again, is entitled to take that view.[77]In short, therefore, the Tribunal is quite satisfied that the respondent saw the claimant’s conduct as very serious, and meriting dismissal. The claimant , however, did seek to mitigate the seriousness of his conduct, in a number of ways. He relied 29 of 32 upon his record, unblemished , as he put it, but that was only for some 18 months or so.[78]He also raised, and did in this hearing, the possibility of medical conditions affecting his performance. He has, however, produced nothing to substantiate this, and other than to state that he had made Ms Tinsley aware of his condition, did nothing at the time to raise this with the respondent. The respondent can only act on what is presented to it, or which it ought reasonably to have investigated further. There was nothing presented to it at the time, nor that it (as opposed to the claimant) could or should have investigated further by way of any medical mitigation for the claimant’s failures over that 3 day period. The employer’s duty is to act reasonably, not to conduct investigations into speculative issues of mitigation which an employee raises in the course of disciplinary proceedings, but does nothing more to advance, even at the appeal stage.[79]The respondent, as the evidence of both Daniele Sayer and Alexandra Freckleton shows, did take all relevant factors into account, and did consider whether any lesser sanction could be imposed. The lesser sanction of demotion is one which, the Employment Judge recognises, may appear superficially attractive as an alternative to dismissal. It was, the Tribunal is satisfied, something the respondent did seriously consider. It was, however, rejected, because of the loss of trust and confidence in the claimant as an employee in any role. Given the nature of the respondent’s business , and the claimant’s admission to having previously failed to follow procedures when in a lesser role, the Tribunal cannot say that in rejecting this as an alternative to dismissal, the respondent went outside the range of reasonable responses.[80]For all these reasons, and applying the relevant legal tests, the claim for unfair dismissal fails and is dismissed. The breach of contract claim – notice pay.[81]That leaves the claim for notice pay, where a different test is to be applied. Here the Tribunal does not confine itself to reviewing the decision of the respondent and testing whether it fell within the range of reasonable responses, rather it determines whether the respondent has shown, as a matter of fact and law, that the claimant was guilty of conduct which was so serious as to entitle it to dismiss him without notice, and that it did so for that reason.[82]The Tribunal has no hesitation in so finding. The claimant admitted that over the course of three days he failed to follow very important express instructions and procedures which he knew were essential to financial control in a highly cash based business. Unlike unfair dismissal , where an employer cannot simply deem something as an offence of gross misconduct if, applying the reasonableness tests , no reasonable employer would consider such conduct as gross misconduct meriting immediate dismissal, contractually an employer has a much freer hand. It can, and in this case did, clearly specify what conduct would be deemed to amount to gross misconduct, and that dismissal without notice would be the result of such conduct. The respondent expressly did so. It found, as does the Tribunal, that the claimant’s admitted conduct over three days breached the express terms of his contract of employment. Even without those express terms, his conduct would also have been 30 of 32 enough to breach the requirement of trust and confidence, and entitled the respondent to dismiss him under the common law principles in the case law cited by Ms Smith.[83]For these reasons , the claimant’s claims fail, and are dismissed. Approved by: