Mr D Baker v Principal Building Products Limited — 2021

Mr D Baker was employed by Principal Building Products Limited as a Warehouse Manager from 5 June 2002 until his dismissal on 15 July 2020 for gross misconduct. The allegations concerned cash sales said to have occurred on 1 June 2020 and 17 June 2020, and the tribunal preferred the evidence of Mr Barton and Stuart Riley to the claimant's account. It found that Mr Barton gave the claimant #262 in cash on 1 June, that the relevant sale was not recorded, and that #250 went missing; it also found that on 17 June Mr Barton gave the claimant #20, the claimant dealt with an #80 sale, the transactions were not recorded, and #100 in cash seen under the claimant's jotter pad was not accounted for.

The tribunal rejected the claimant's case that the allegations were fabricated or that he had been set up. It found his evidence unsatisfactory and unreliable, including his assertions about being prevented from being accompanied, his challenge to the post-it note and Mr Harrison's statement, and his claims of grievances, threats, and grudges involving Mr Harrison, Mr Barton and Stuart Riley. On the facts it found that the relevant sales did happen, that the claimant was responsible for the cash tin, and that he stole #250 on 1 June and #100 on 17 June.

On the legal test for unfair dismissal, the tribunal accepted that misconduct was a potentially fair reason and that dismissal for this conduct was within the range of reasonable responses. However, it held that the process was procedurally unfair because the charges were not framed clearly as theft, the respondent did not keep adequate contemporaneous records of its cash checks, and David Riley did not properly consider or investigate the points raised in the claimant's disciplinary statement before deciding to dismiss. The claim therefore succeeded. The tribunal also held that, had a fair procedure been followed, there was still a 75% chance the claimant would have been dismissed, and it indicated that any basic and compensatory awards would be reduced by 75% under sections 122(2) and 123(6) of the Employment Rights Act 1996, with remedy to be determined at a later hearing.