Appeal No.	 EAT/62/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 April 1997

Before
HIS HONOUR JUDGE PETER CLARK
MR A C BLYGHTON
MRS M E SUNDERLAND JP

SALE WINE BAR LTD	APPELLANTS

MISS A EDWARDS	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellants	MR HODKINSON
(Solicitor)
appearing by
The Employment Law Appeal Advice Scheme	

	JUDGE PETER CLARK:   This is an appeal by the employer against a decision of the Leeds Industrial Tribunal sitting on 23rd October 1996 that the respondent employee, Miss Edwards had been unfairly dismissed and was entitled to compensation totalling £4,830.00.

	The respondent was employed from 16th April 1994, finally as an Assistant Manager at Supersnooker in Leeds. On 15th April 1996 her manager was ill and she was in charge of the premises. Two managers under whom she had worked had banked takings whilst unaccompanied. She decided at 10 a.m. that she would bank just under £5,000.00. She put the money into her handbag. On the way to the bank she was robbed by two men. Her bag and the money were stolen.

	She returned to the premises and informed her employers and the police of what had happened. She was interviewed at Milgarth Police Station by officers including Detective Sergeant Haigh, who was called to give evidence on behalf of the respondent before the Industrial Tribunal.

	After the respondent had returned to her place of work the appellant’s Chairman, Mr Cunningham and the Assistant Area Manager, Mr Leatherbarrow, arrived. Mr Cunningham accused her of being involved in the robbery. She denied this but he refused to accept her explanation. He was in a bad temper because the loss of the money was uninsured. It was a requirement of the Company’s insurance policy that two people should take money to the bank.

	Eventually Mr Cunningham told Mr Leatherbarrow that in his opinion the respondent was guilty of gross misconduct and should be dismissed. He told Mr Leatherbarrow to show her out of the premises which he did, asking the respondent for her keys and as she left told her: “I’m sorry but we will have to sack you”. The respondent took this to be a dismissal. Subsequently, when speaking to DS Haigh, both Messrs Cunningham and Leatherbarrow indicated that the respondent had been dismissed for gross misconduct and she never returned to work.

	Later she received a letter from Mr Cunningham dated 18th April indicating that if she thought she had been dismissed then this was a mistake. She had simply been suspended pending a disciplinary hearing. She was asked to attend such a hearing on 24th April. She did not do so because of the way in which she had been treated on 15th April, which she regarded as a clear dismissal. She then brought a claim of unfair dismissal and also a claim of wrongful dismissal which was subsequently withdrawn.

	The first point taken on behalf of the appellant before the tribunal was that if the respondent was dismissed on 15th April she had not completed two years qualifying service. However, applying s.97(2) of the Employment Rights Act 1996 the respondent was entitled to add one week’s minimum notice under s.86 of the Act for one year’s completed service, which took her over the two year qualifying threshold for the purposes of s.108(1).

	Secondly, the tribunal found that she had been dismissed on 15th April.

	Thirdly, it found that dismissal to be unfair. There had been no proper investigation before dismissal; a proper investigation would have revealed, as Mr Cunningham eventually concluded, that the respondent was not involved in the robbery.

	The tribunal then proceeded to assess compensation.

The Appeal
Mr Hodkinson has appeared under the ELAAS Scheme on behalf of the appellant. He submits that the tribunal was wrong in law in finding that a dismissal took place. He relies the on the appellant’s subsequent attempts to treat the respondent as suspended pending a disciplinary hearing as removing any possible dismissal.

	We reject that argument. The words used on 15th April were clearly words of dismissal. A termination cannot be unilaterally withdrawn Harris & Russell v Slingsby [1973] ICR 454. There was no offer of unconditional reinstatement which might have gone to the question of mitigation of the respondent’s loss. On Mr Cunningham’s evidence a proper investigation would have resulted in the respondent being exonerated and thus she would not have been dismissed had the matter been properly dealt with.

	In these circumstances, this being a preliminary hearing held to determine whether or not there is any arguable point of law to go to a full hearing before the appeal tribunal, we have concluded that there is not, and that this appeal must be dismissed.