Mr. T. Wilding, Counsel v Respondent — 2020

Mr. S. Baig brought a claim for unfair dismissal after being dismissed by Sky UK Limited Retail Services on 15 July 2020. The tribunal found that the principal reason for dismissal was misconduct, namely the creation of a duplicate account on 11 March 2020, and it rejected the claimant’s case that redundancy was the real reason for dismissal. The tribunal accepted that there had been a customer complaint and a dispute about the handling of the sale, but it was not satisfied that redundancy was the dismissal reason at the time.

The tribunal held, however, that the respondent’s investigation was inadequate and that it could not have formed a genuine belief in misconduct on reasonable grounds. A central issue was the extensive redaction of colleague MM’s interview notes. The tribunal found that the claimant was denied access to material that could have shed light on the store’s custom and practice, what MM told the claimant before the sale, and whether the claimant’s conduct was deliberate or a mistake. It also found that Mr. Shepherd began with a closed mindset and unreasonably accepted aspects of the customer’s account, including a supposed £180 debt, which the tribunal found had nothing to do with the claimant.

Although the tribunal accepted that the respondent was entitled to think the system banner probably would have appeared when the customer’s details were entered, it held that the respondent failed to consider the surrounding context, including the team’s sales-sharing practice and the possibility that the claimant had made an error rather than intentionally overriding a warning. The dismissing officer did not obtain unredacted witness material and treated the breach as gross misconduct without properly weighing the claimant’s long service, lack of financial gain, and the fact that the matter had been remedied within a week.

The tribunal therefore found the dismissal unfair. It also said that, if it had been necessary to consider alternative fairness arguments, dismissal was outside the band of reasonable responses. It did not make a Polkey deduction on the evidence before it. On contributory fault, the tribunal found that the claimant had created a duplicate account in breach of policy and reduced compensation by 25%. A separate remedy hearing was listed, so no monetary award was made in this judgment.