THE CURIOUS CASE OF TABLE 5A

The recent Employment Tribunal case of Shibchurn v La Trattoria Walthamstow Limited (3200792/2016) is a good example of a Tribunal finding that there was a fair dismissal notwithstanding, some might say, significant procedural failings on the part of the employer. The case was decided at first instance and therefore is not binding authority, but nonetheless interesting reading.

The case involved a restaurant and the mystery of table 5A.

The Claimant was employed by the restaurant as a waiter. On Sunday 1 May 2016, he was working front of house with another person, known as Grace Cheadle. Both were serving food and clearing tables. On the night in question, the credit card machine was not working. Ms Cheadle texted her boss, Deborah Gibson of the problem and also informed her that they had had 21 guests that evening. The same night, a Mr Georgiev, who had been working in the kitchen, texted Ms Gibson to inform her that they had had 23 guests that evening. Thus began the curious case of Table 5A!

Ms Gibson was naturally concerned about the discrepancy in numbers, particularly given the failure of the credit card machine. She therefore carried out a reconciliation of the various records, including the bookings report, drinks record, kitchen diaries, bills and front of house food order records. She could not find the kitchen copies of the food orders initially but then found them in a bin where they had been erroneously discarded. Such records then revealed that there had in fact been 23 (and not 21) orders although the front of house copy of the order for a table 5A was missing.

The kitchen copy of the order for table 5A showed what food had been ordered and a bar record for table 5A showed the order for drinks. Ms Gibson spoke to Mr Georgiev to ask if the table in question had been occupied that night, and he told Ms Gibson that it had been occupied by two of the Claimant's friends - the plot thickened! Ms Cheadle also confirmed the same thing. You can therefore see where this one is going!

On the face of it, table 5A had received food and drinks without paying.

On 4 May 2016, the Claimant attended work as usual. Without prior warning he was called into a meeting. He was not advised of his right to be accompanied and nor did he request to be accompanied. Ms Gibson told the Claimant that a serious discrepancy had arisen in respect of the now infamous table 5A for which the takings were missing. The Claimant responded that there was no table 5A on the night in question. Ms Gibson did not however show the Claimant the records which she had obtained showing that there had indeed been a table 5A that night, although she did challenge his denial saying that she knew there had been guests at the table. Notwithstanding this, the Claimant repeated his denial. Given this, Ms Gibson concluded that the Claimant had committed an act of misconduct, either by retaining payment for table 5A himself, or by treating his friends to a free meal. Ms Gibson considered either amounted to gross misconduct and she orally informed the Claimant that he was dismissed without notice. There was some dispute as to whether she informed the Claimant of his right of appeal. He said she didn't, and she maintained she did, which the Tribunal accepted. In any event, there was no appeal against his dismissal, but instead the Claimant pursued unfair dismissal, breach of contract and discrimination claims against the employer. For the purpose of this post, we will concentrate on the unfair dismissal claim only, suffice to say that the Claimant failed in respect of his other claims as well.

When the matter came before East London Employment Tribunal, the Tribunal's unanimous decision was that the Claimant was fairly dismissed. This was notwithstanding the fact that:

• Ms Gibson had in effect acted as Judge, jury and prosecutor - she had in effect solely investigated the matter, and decided on the dismissal;
• The Claimant had been given no prior warning of the meeting which ultimately decided on his dismissal;
• The Claimant was not given details of the investigation or the charges before the dismissal meeting;
• The Claimant was not advised of his right to be accompanied and nor did he request this;
• Material in relation to the investigation was in fact held back by Ms Gibson when asking the Claimant about table 5A; and
• There was a question-mark over the extent to which the Claimant was advised of his right to appeal, although the Tribunal accepted that he was.

Now, don't get me wrong, it was pretty clear from the evidence that the Claimant had carried out an act of gross misconduct and all the fingers pointed to the fact that Table 5A had not been accounted for on a night when the credit card machine was down and friends of the Claimant had attended at the restaurant. It appeared on the face of it pretty clear that either the Claimant had pocketed the money himself, or (perhaps more likely) given his friends a free meal on the house.

The curious issue about this case and the Tribunal decision however, related to the fact that notwithstanding what appeared on the face of it, to be an unfair procedure in the lead-up to the Claimant's dismissal, the Tribunal nonetheless was satisfied that the dismissal was fair. Appreciating that this was a first instance decision only, it seems clear that the Tribunal was significantly swayed by the following:

• The Claimant proved himself to be a completely unreliable witness, almost to comic proportions! In this respect, there were 2 witness statements for Ms Cheadle put before the Tribunal - one submitted on behalf of the Claimant, and one submitted on behalf of the Respondent. Both flatly contradicted each other on the key issue in dispute. Curiously, Ms Cheadle herself said that she had never provided any statement to the Claimant or his then solicitors, and had not even seen the statement drafted in her name until it had been disclosed to the Respondents as part of the proceedings. Nor had she ever been asked to confirm that the contents of such statement was true! The Claimant's explanation for this mystery was immense: "The Claimant's explanation was that Ms Cheadle had refused to return his telephone calls and the statement in her name was what he thought she would tell the solicitor"! - really? You couldn't make it up - Tribunal gold!
• A further statement was provided by the Claimant for another employee, a Mr Brijmohun, who denied signing any statement and did not attend the tribunal!
• The Tribunal found that the Claimant "...was an unreliable witness whom we considered was prepared to tailor his evidence to best suit his case rather than provide an honest recollection of what had happened" An example was given regarding his evidence on the curious case of table 5A. In this respect, in his statement exchanged by his then solicitor prior to the Tribunal, the Claimant stated: "I was the waiter and can confirm that there was no one at table 5A. The fact that there were no kitchen orders or restaurant orders for table 5A is clear evidence that there was no table 5A. Had there been a table 5A then the kitchen orders would have confirmed this and what they had ordered, even if the restaurant order pad was missing". However, in an amended statement provided by the Claimant on the morning of the Tribunal Hearing, his evidence had changed materially to "I was the waiter and can confirm that there was a change to table 5A. The fact that there were no restaurant orders for table 5A is clear evidence that there was no table 5A served". In cross examination, the Claimant further stated that the guests at table 5A had moved to table 5 after being seated, although this was not to be found in any of his witness statements! He also then tried to convince the tribunal that after the guests at table 5A (who had now moved to table 5 - still with me?) had moved they had decided then to change their order some 30 minutes after originally ordering!

So you can see why the Tribunal was desperate to find against the Claimant in this case. Notwithstanding this, the above does not explain how, despite the seemingly clear procedural failings in the dismissal, the Tribunal was nonetheless able to find that the dismissal was fair. In this respect, the Tribunal concluded as follows:

• Ms Gibson genuinely believed that the Claimant had committed an act of misconduct and this belief was reasonable and based upon a reasonable investigation (thus, in the Tribunal's mind satisfying the test laid down in BHS v Burchell (1978)). In this respect, the Tribunal found that "The reasonableness of an investigation depends in part upon the defence put forward by the employee" - and we all know how reliable the Claimant proved to be!
• On the slightly dodgy issue of the right of the Claimant to be accompanied at the "disciplinary hearing" that decided his fate, the Tribunal simply stated that the Claimant had not asked to be accompanied. Nor did he request copies of the evidence or seek a postponement - Er, not sure about that one! The tribunal tried to gloss over this by reminding itself "...we should consider the fairness of the dismissal procedure overall and take into account the size and administrative resources of the employer" - neat swerve that one, although not entirely convincing on why it was acceptable for the Respondent to give no prior warning to the Claimant of the meeting, no prior disclosure of evidence and no right to be accompanied, but there we go!
• Overall, the Tribunal was satisfied that the dismissal was fair in all the circumstances of the case. In this respect, the Tribunal found: "This was a very small employer without dedicated Human Resources support. Ms Gibson carried out an investigation of the allegations which disclosed evidence entitling her reasonably to convene a disciplinary hearing" On the important issue of procedure, the Tribunal went on to state "Whilst it would have been better to suspend the Claimant initially, then convene a hearing on notice with provision of evidence, fairness is not a counsel of perfection and we must take into account the circumstances of the case....We have found that the Claimant was advised of the detail of the allegation against him and was offered an opportunity to respond. His response denying guests at table 5A was in direct contradiction with all the other evidence available. He was given an opportunity to reconsider his response during the hearing but chose not to do so. He did not appeal nor advance the explanation given today about the guests changing table. The issue of whether or not table 5A had been served food was within his knowledge even without [sight] of the documents obtained in the investigation. The absence of forewarning and copies of the investigation documents did not have the effect, on the particular circumstances of this case, [to] render dismissal unfair." The tribunal concluded that the sanction of summary dismissal fell within the range of reasonable responses.

Now don't get me wrong. In my opinion, the Claimant got precisely what was coming to him based on the report of the case. Morally, precisely the right decision and outcome for the employer. In relation to the findings made in connection with the procedural failings by the employer in this case, I think the Tribunal was, to be fair, quite generous to them, and I certainly would not put this case up as an indication that employers can just run roughshod over the ACAS Code. All of this said, what this case does show (albeit only at first instance) is that procedural flaws will not of themselves necessarily result in a finding of unfair dismissal and all circumstances of a particular case have to be taken into account.

Do I think that the decision in this case was right from a legal perspective? Given the extent of the flaws in the procedure followed by the employer before dismissing, whilst I recognise that the employer was only small, nonetheless I think that another tribunal could well have found, at least from a procedural point of view that the dismissal was unfair. I think probably the easiest way round it would then have been to find that notwithstanding this, no amount of fair procedure would have resulted in any different outcome, or, and in any event, the claimant, by his conduct contributed 100% to his downfall (with the effect that he would come away with precisely nothing). I am surprised that the Tribunal in this case did not at least give itself a back-up alternative argument in this respect.

I do get the feeling in this case, and perhaps rightly, that the tribunal was determined whatever to find against the Claimant, who had, as it would appear, acted with complete dishonesty, and lacked all credibility as a witness.

So there we have it, the curious case of Table 5A.

Alex Payton, Director and Employment Lawyer, Howes Percival LLP