Issue Tribunal (ET) decision was restored and Mr. Stuart

Issue

The main issue in the question is whether Mr. Jones rights under S.94 of Employment Rights Act (ERA)1996 which state that an employee has the right not to be unfairly dismissed by the employer has been violated or not.

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Rule

(TULRA) Trade Union and Labour Relations (consolidation) Act 1992

S.212b Dismissal Procedure Agreements where ACAS can agree any dismissal procedures contract within the meaning of The ERA 1996 and can refer to any matter to the arbitration of a person appointed by ACAS for the purpose (not being an employee of ACAS or an officer). (Legislation.Gov.Uk, 1997)

S.98 of The Employment Right Act (ERA) 1996 states as follows:

(1a) To determine whether the dismissal of an employee is fair or unfair for the employer to show the reason for the dismissal.

(2b) A reason falls within this if it relates to the conduct of the employee.

(4a) the question whether the dismissal is fair or unfair depends on whether the employer acted reasonably or unreasonably in treating it as a sufficient reason for diminishing the employee.(Legislation.Gov.Uk, 1996)

Application

Since clearly mentioned above that the company investigated the matter of missing box using CCTV footage of Mr. Jones in a Townsville depot, where the footage was observed by its two employees and distrustful activity of Mr. Jones during loading process was considered and believed that he had stolen a box containing a laptop that went undelivered. Hence, Mr. Jones was terminated by the company due to serious misconduct under s.98 (2b). 

Referring to the case (Stuart v London City Airport , 2013) where the Employment Tribunal (ET) decision was restored and Mr. Stuart was found guilty of theft.  As honors of CCTV, the EAT said that although there was no CCTV footage of the chief area, footage of the Claimant’s movements inside the store was viewed accurately, to be of significant support in relative to the claim of concealment and therefore of misconduct.” Hence the Appellant was found acting reasonably in dismissing him. In case of Mr. Jones since the company had CCTV footage against Mr. Jones can’t be neglected.

Furthermore in (Kaczor v Booker Ltd , 2012) the ET acknowledged that since it was not potential to check whether or not the yogurt jar had been thrown into one of the bins because they had been squashed by the time that the lost yogurt was exposed and appropriate investigation was done with the relevant parts of the CCTV footage. The tribunal also believed that the employer fairly accepted that Mr. Kaczor had stolen the yogurt, and this belief was grounded on adequate proof.  Depending on the case Mr. Jones dismissal was fair because his suspicious activity during the loading process was clearly seen in CCTV footage.

Likewise in (Pritchard v B&Q Ltd , 2012) where the employer was authorized to find Mr. Pritchard’s was guilty and the decision to dismiss him was within the range of reasonable responses and the claim for unfair dismissal was prohibited by the ET. Therefore, Mr. Jones dismissal is fair as the employer had acted within the range of reasonable responses.

Correspondingly in (British Leyland UK Ltd. v Swift, 1981) where the Court of Appeal retreated the verdict of an industrial tribunal and replaced a decision that it was fair and found the employer acting reasonably in dismissing him. Relying on the verdict of the cases Mr. Jones dismissal is fair under s. 98 (4a) as the employer has shown that the reason for the dismissal comes within the terms of s.98 (1a) or (2b).

Referring in particular to the very well – known cases (British Homes Stores v Burchell , 1980),   ( Sainsbury’s Supermarket Ltd v Hitt , 2003), (Iceland Frozen Foods ltd v Jones, 1982) , (Sillifant v Powell Duffryn Timber Ltd, 1983) and (J Sainsbury Plc v Hitt, 2003) where the test for establishing a fair reason for dismissal is put down. The employer must reflect that the employee is guilty of the conduct and declare on reasonable grounds succeeding a reasonable inquiry are some guidance provided by the EAT which are essential to be taken by employers who suspect one or more employees of misconduct. In (Linfood Cash & Carry Ltd v Thomson , 1989) the employees were dismissed on suspicion of theft. The dismissals were believed to be unfair because, relating the Burchell test, the court decided that even though the employer honestly believed in the employees’ guilt, they had no reasonable grounds for that conviction and had not carried out a suf?cient investigation. Hereafter in Mr. Jones case as the company didn’t have reasonable grounds for that conviction his dismissal was unfair.

The similar approach was laid out in (West Midlands Co-op v Tipton , 1986) and (Newbound v Thames Water Utilities Ltd , 2015) where the House of lord held that wrongdoing of an employee which is inappropriate to the genuine reason for dismissal and con?rmed that a dismissal is unfair. Therefore Mr. Jones dismissal is unfair due to lack of genuine reasons.

In (Medhin v Compass Group UK & Ireland Ltd t/a Restaurant Associates , 2010) tribunal held that, although the company had a genuine belief that Mr. Medhin had committed misconduct, the grounds for dismissing him to be guilty of theft were not reasonable and Mr. Dreamers decision to dismiss was found to be based on incorrect information. Finally, the tribunal held that the appeal, which should have been a rehearing rather than a review, did not remedy the problems in the company’s decision to dismiss and found Mr. Medhin had been unfairly dismissed. Relying on this case Mr. Jones dismissal is unfair as the company didn’t have reasonable grounds for that conviction his dismissal was unfair.

In (Surrey County Council v Henderson, 2005), the EAT originated that the level of inquiry carried out by the employer following serious claims against the employee, was not out with the “group of reasonable responses” where proof supporting the claims was not agreed for the employee prior to his dismissal and was found to be unfairly dismissed. Conferring to this case, Mr. Jones dismissal is unfair as the company didn’t have the group of reasonable responses.

The established position is that when considering whether a dismissal is unfair a tribunal ensures that it does not substitute its view for that of the dismissing employer. As held in (London Ambulance Service NHS Trust V Small , 2009) where ET seriously strayed from reviewing the fairness of the employer’s handling of the dismissal and substituted its own view of the facts relating Mr. Small’s conduct, retrying certain factual issues and concluded that the employer did not have reasonable grounds for believing that Mr. Small was guilty of misconduct. Henceforth in Mr. Jones case as the company didn’t have reasonable grounds for that conviction his dismissal was unfair.

Similarly, in (W Devi’s & son’s ltd v Atkins , 1977) as the employer tried to present new evidence of a dismissal employee’s serious misconduct but failed because the information that came to light after the dismissal had taken place for another reason, specifically a failure to obey the rules and instructions. So the court approved the approach held in (Abernethy v Mott. Hay & Anderson, 1974) where it was ruled that: “A reason for the dismissal is a set of facts known to the employer, or it may be of the beliefs held by him, which cause him to dismiss the employee. If at the time of the dismissal the employer gives a reason for it, that is no doubt evidence at any rate as against him, as to the real reason.”  Relying on the verdict Mr. Jones dismissal was unfair as the genuine reasons were not given by the company.

Referring to TULRA S.212B in the case of Mr. Jones, it can be determined that Direct Freight Express didn’t have genuine reasons to dismiss Jones related to his conduct within S.98(2b) and they had not acted reasonably in treating that conduct as a reason for dismissal as clearly mentioned in case, the CCTV footage didn’t enable the viewer a clear image of the box’s markings nor it does appear to be the same size or shape as the missing box. As per S. 98 (1) Jones, dismissal is unfair since Direct Freight Express had no sufficient reason for dismissing Jones under S.98(4a).

Conclusion

Regarding the above analysis, it can be concluded that Mr. Jones dismissal is unfair as the company didn’t act reasonably in treating it as a sufficient reason for diminishing Mr. Jones under S.98 (4b).

 

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