E.A.T decision sent 23.08.12 – Tesco in the firing line for procedural errors in dismissal including reliance on circumstantial evidence

Amongst the decisions sent by the Employment Appeals Tribunal yesterday 23rd August includes the appeal of Ingrid Vasiova in respect of the Rights Commissioner decision dated 29th June 2010 (reference r-084585-ud-09/RG) concerning her employer Tesco (Ireland) Limited t/a Tesco Distribution (UD 1514/2010).The dismissal arose in this case from the disappearance of 15 MP3 players from the Respondent’s premises in July 2009. The Respondent suspected the Appellant who was visiting the location in a high value area where she was not authorised to go and that she had colluded with another individual concerning the alleged theft. The Respondent believed that she opened the box and removed a number of MP3 players and left them in an area easily accessed by her conspirator. The CCTV footage in this case was not probative of her suspected role.The Respondent carried out an investigation which comprised of separate interviews with the Appellant who was accompanied by a trade union officer. The Respondent also interviewed the alleged conspirator. Unhappy with the response from the Appellant, the Respondent suspended her on full pay pending a further investigation and disciplinary procedure. The Appellant was dismissed and appealed the decision on the grounds that a full investigation had not been carried out by the Respondent and she also complained about the severity of the sanction imposed.The Tribunal in this case was apprehensive about the conduct of the Appellant and unimpressed by the evidence given by her at the hearing but was also uncomfortable by the general approach of the Respondent and specifically:

1. The evidence against the Appellant was merely circumstantial and inconclusive.
2. The Respondent clearly regarded the incident as criminal but failed to formally present the Appellant with allegations of gross misconduct.
3. The Respondent neglected to inform the Appellant the investigation process was a serious one which could result in her dismissal.
4. The Respondent’s investigation and disciplinary procedures were not distinguished from each other.
5. The appeal process had significant flaws.

The Tribunal held that the dismissal was unfair by virtue of the fact that the evidence was circumstantial and particularly because of the procedural difficulties outlined above. The Tribunal also held that the Appellant had contributed significantly to her own dismissal and upset the Rights Commissioner’s decision and awarded her €1,000 under the Unfair Dismissal Acts.It is interesting to note the marked increase in comments by the Tribunal recently concerning procedural errors by employers made during an investigation process undertaken and of particular note here are the comments by the Tribunal that the Respondent’s investigation and disciplinary procedures were not distinguished from each other.