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Employment Tips

Employment – Unfair and Wrongful Dismissal – Procedural Unfairness
By:Rosanna Cooper

In October 2006, the case of Letherbarrow v Kindergarten UK Ltd [2006] came before the Employment Tribunal. An employee and his wife had both been directors and co-owners of the employer company. The employee’s wife was the majority shareholder, although she was an employee as well.

The employee’s marriage with his wife broke down. He was summarily dismissed for gross misconduct on 10 September 2005. A number of issues relating to his conduct were complained of, the most material of which was the allegation that on 7 September he had taken the sum of £600 from the employers safe without consent. He appealed against his dismissal but was unsuccessful. The employee then began Tribunal proceeding on the grounds that he had been unfairly and wrongfully dismissed.

At a pre-hearing review, the Tribunal struck out the employee’s two claims on the grounds that they had no reasonable prospect of success. From the answers given to the Tribunal by the employee, the Tribunal adduced that he had in fact taken the £600, an act which clearly amounted to gross misconduct, and that therefore his dismissal had been within the reasonable range of responses available to the employer. The employee appealed to the Employment Appeals Tribunal (“EAT”).

The employee argued that the Tribunal had erred in taking for granted the employer’s reason for his dismissal, especially as the employee had disputed its genuineness. He had made it clear that the allegations leading to his dismissal had been linked to the breakdown of his marriage. In such circumstances the Tribunal should have adopted a different procedure.

The appeal was allowed. The EAT ruled:-

* that the Tribunal had not heard evidence from the parties before reaching its decision.

* As the employee had made allegations concerning the impropriety of the proceedings brought by the employer, the case was not suitable for the summary procedure used by the Tribunal.

* The tribunal should have considered that even though the taking of the sum of £600 from the safe could have amounted to gross misconduct, the employee may not have needed permission to do so as he was a director of the employer company.

* Furthermore, the Tribunal had neglected to consider the procedural fairness of the dismissal.

Under the above circumstances, the Tribunal had erred in striking out the employee’s claim. The EAT ruled that the should be heard before a fresh tribunal for reconsideration.

Rosanna Cooper
© RT COOPERS, 2006 http://www.rtcoopers.com/practice_employment.php

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