In Person For the v Mr G Fousert (Director) — 2020

Mr D Tudball was employed as a sales assistant at Fousert Ltd’s Rhyl store from September 2015 until his dismissal on 25 June 2018. The tribunal reviewed CCTV footage, till records, and witness evidence about a £200 cash shortage, and found that he breached cash handling procedure by removing money from the till, being interrupted by a customer, and later forgetting to place the cash in the safe. The tribunal did not find that he stole the money.

The unfair dismissal claim was dismissed. Applying section 98(4) ERA 1996 and the Burchell approach, the tribunal held that Fousert Ltd genuinely believed the claimant had committed misconduct, that the investigation was reasonable for a small business, and that dismissal was within the band of reasonable responses. The tribunal accepted that the disciplinary paperwork contained incorrect dates, but found the claimant knew the case he had to answer and was not disadvantaged.

The wrongful dismissal claim was upheld. Although the respondent believed the claimant had stolen the money, the tribunal found that on the balance of probabilities he had not committed theft and that his conduct was misconduct rather than gross misconduct. Immediate dismissal was therefore not justified, and the claimant was awarded two weeks’ notice pay at £172.26 per week.

The unlawful deduction of wages claim was also upheld. The tribunal held that the respondent’s contractual deduction clause was limited by its own policy, and that the earlier £200 deduction was not justified because there had been no appropriate investigation. It further held that, in relation to the 25 May 2018 shortage, only £100 could properly be deducted because the employee who emptied the safe could also have been responsible. The respondent also conceded unpaid wages of £344.52 and holiday pay of £241.64. The final award was £830.68.