Inconsistent Evidence

It’s that time of the week again. No. Not Friday. Case law update time! You might think last week’s newsletter celebrating the dawn of spring would lead to lighter, more cheerful cases. However, you thought wrong as this week’s case concerns theft, breach of trust, gross misconduct and eBay.

Today’s question:

Can inconsistent answers during a disciplinary interview amount to a breach of trust tantamount to gross misconduct?

Ms Christofidou, the Claimant, was a sales advisor for House of Fraser, the Respondent, at their London store. The store had a long standing issue with missing stock and in the year leading up to the Claimant’s dismissal (2013) over £640,000.00 of stock went missing from the store where the Claimant worked.

To combat the issue the Respondent installed CCTV in its stock room, began conducting stock checks every 6 months and monitored similar products being sold on auction sites such as eBay. This led to 70 dismissals across all the Respondent’s stores.


During the eBay monitoring the Respondent uncovered an account selling the Respondent’s stock registered to the Claimant’s address but in a different name. The account was created in 2005 and the Claimant had lived at the registered address for the duration of the accounts lifespan. The name registered on the account had moved from that address prior to its creation.

At the end of a normal working day and with no prior notice, the Claimant was called into an investigation meeting. The Claimant was questioned about the account although she was not told why she was being interviewed.

The Claimant confirmed the name on the account was her ex-husband. She denied any knowledge of the account, why the Respondent’s stock was being sold via the account and why the account had gone dormant for the duration of the Respondent’s recent crackdown. She also claimed she didn’t even know how to use eBay (the Harry Redknapp defence).

Following the meeting, the Claimant’s ex-husband wrote to the Respondent saying he had set up the eBay account to sell products he bought from markets, sample salesman and factory surplus outlets. He said it was registered to the Claimant’s address because he was between homes at the time the account was set up.

The ex-husband also attended the Respondent’s store to address the issue but was turned away as there was no one available to talk to him. Neither of these incidents were bought to the investigating manager’s attention.

At the Claimant’s disciplinary hearing she alleged she didn’t know her ex-husband’s address or when she last saw him. However, she did say he had a key to her flat and access to her post box. She was not able to explain why so many of the items sold on the account where similar to stock the Respondent sold in the store where the Claimant worked.

She was dismissed for gross misconduct due to lack of trust and this was confirmed in writing. The Claimant bought claims of unfair and wrongful dismissal before the ET. The ET allowed the claims stating that despite the Claimant’s inconsistent and unhelpful attitude during the investigations this did not amount to a breach of trust. It added by failing to seek evidence from the ex-husband the Respondent had failed to investigate properly.

The ET deducted 50% of the Claimant’s award due to contributory fault relating to her conduct and also a further Polkeydeduction, because, without all the evidence there was a chance she stole the stock.

The Respondent appealed and the EAT allowed the appeal. It believed the ET’s decision was perverse and that it had substituted its own view for that of a reasonable employer. It further held that the dismissal fell in the band of reasonable responses.

The Takeaway points:

Yes, in this case the Claimant’s inconsistent, unhelpful and suspicious behaviour meant that the Respondent was entitled to conclude this was a breach of trust and confidence. Even though the Respondent did not contact the ex-husband the Claimant also made no attempt to cite him as a witness or encourage/aid the Respondent in contacting him. For these reasons dismissal fell within the band of reasonable responses.

This is a useful case for any employer who has had issues with theft or issues with trust. It is also worth noting the theft could become a criminal matter. For more cases on gross misconduct click here.