Dibble v. Falzon & Anor (t/a The Anne Arms)

In an unfair-dismissal claim, the tribunal must identify the employer’s actual reason for dismissal and determine whether it was a statutorily permissible reason. It must then assess the reasonableness of the employer’s belief and investigation by reference to material available to the employer at the time.

A tribunal must address and give adequate reasons on a central evidential issue. A failure to consider evidence which may undermine the employer’s stated basis for a theft allegation is not peripheral where that basis materially informed the dismissal decision.

The Claimant, a long-serving pub worker, was dismissed for gross misconduct after the Respondents alleged that CCTV showed her taking money from the till dishonestly. The Employment Tribunal dismissed her unfair-dismissal claim.

On appeal, the Claimant contended that the Employment Judge had failed to identify the employer’s reason for dismissal or address evidence that the till takings were in surplus, despite the dismissal letter relying substantially on an alleged shortfall. She also challenged the treatment of evidence concerning her explanations for taking the money.

The central issue was whether the Tribunal had adequately determined the reason for dismissal and the reasonableness of the employer’s belief and investigation.

1. Appeal allowed. The Employment Judge’s decision was seriously deficient and was set aside. The claim was remitted for a rehearing before a differently constituted Employment Tribunal.

2. The Tribunal had not made an express finding on the first issue in an unfair-dismissal claim: whether the employer had established its reason for dismissal and that the reason fell within a statutorily permissible category. It did not set out the relevant contents of the dismissal letter, although that letter stated that the Respondents’ belief that the Claimant had stolen money was based on an alleged till shortfall.

3. The taking of money from the till was undisputed. The material issue was whether the Respondents could reasonably conclude that the taking was dishonest, and whether their investigation was adequate. Evidence available to them indicated that the takings were in surplus rather than deficient. Since the alleged deficiency was an important basis of the dismissal, that evidence was central, not peripheral.

4. The Tribunal was required to consider the competing evidence about the takings and decide whether, on all material available to the Respondents when they acted, they had reasonable grounds for their belief in theft. Its failure to address that issue or explain why dismissal was reasonable undermined the entire decision and meant that it was not Meek-compliant.

5. The separate dispute about when the Claimant gave one of her explanations was less consequential, but could be explored at the rehearing.

• Employment Appeal Tribunal: Appeal allowed on 20 June 2018. The dismissal of the unfair-dismissal claim was set aside and the claim remitted for rehearing before a different Employment Tribunal.
• Employment Tribunal: Employment Judge Keevash dismissed the Claimant’s unfair-dismissal claim in Reasons sent to the parties on 19 January 2017.