Ms Ewelina Malowana v Cribben Southampton Limited — 2022

Ms Malowana worked as a waitress for Cribben Southampton Limited from 1 February 2019 until her dismissal on 30 June 2021 for gross misconduct. The tribunal accepted that Mr Cribben genuinely believed she had taken money from the till, and that theft was the reason for dismissal, but that belief still had to rest on reasonable grounds and a reasonable investigation under s.98 ERA 1996.

The tribunal found that did not happen. The allegations put to the claimant were said to be based on diary entries, but the diary pages produced to the tribunal did not match the dates in the allegation table. The tribunal was not satisfied that the table had been reliably prepared from the diaries, and it found the investigation failed to check whether the diary entries actually supported the allegations. It also accepted the claimant's account that till discrepancies were not rare, which undermined Mr Cribben's premise that the claimant was uniquely linked to the missing money.

The dismissal was therefore unfair, and the tribunal made no Polkey reduction because it could not say with confidence that a fairer process would still have led to dismissal. It also found no contributory fault by the claimant. On remedy, it awarded a basic award of £285.12, £250 for loss of statutory rights, and £3,348.02 for 26 weeks' lost earnings. The tribunal did not make any ACAS uplift.

Separately, the tribunal found that the respondent had failed to provide the claimant with a written statement of employment particulars and made the mandatory s38 Employment Act 2002 award of £285.12, equivalent to two weeks' gross pay. The claim about failure to provide payslips was dismissed. The judgment recorded the total payable as £4,168 before recoupment, with a prescribed element of £3,348.02 and a balance of £820.24.