In the course of an employment tribunal hearing for unfair dismissal, issues arose as to the true reason for the dismissal and whether it had been reasonable for the respondent to conclude that the claimant was guilty of dishonesty.
A witness for the respondent had given evidence stating that he understood that the police had referred a file concerning the claimant to the Crown Prosecution Service. No criminal charges were ever brought though. The employment judge proceeded to hear the issue of unfair dismissal without the claimant giving evidence, stating that there nothing relevant to be cross-examined at that hearing. The claimant appealed.
On appeal, it was held that the claimant’s evidence and cross-examination of it was relevant to the issues the employment judge had to decide. He should not have proceeded without hearing it. He should have waited to see if the claimant had claimed any privilege against self-incrimination or made an application to adjourn the hearing.
The facts of the case in brief are that the claimant was employed as a porter who was expected to work a 96 hour shift cycle. It was found that between 2007 and 2014 on 41 occasions the claimant had claimed overtime on the basis that another porter was on leave whereas on those dates, records show the other porter was at work. There had been an overpayment of approximately £7,000. The claimant was dismissed on the grounds of dishonesty. Whilst he accepted that the overtime was wrongly claimed, he stated it was by reason of error, not dishonesty.