Mr N Jenkins v Asda — 2022

The tribunal found that the claimant was dismissed for a potentially fair reason, namely conduct. It accepted that the dismissing manager genuinely believed the claimant had threatened SF on 1 April 2020 by saying words to the effect of "or I’ll have you", and that this belief was supported by SF’s account, RJ’s eyewitness evidence, other witness material about the claimant’s manner towards colleagues, and CCTV showing the aftermath in the pod.

The tribunal concluded that the respondent’s investigation and procedure were within the band of reasonable responses. It rejected the claimant’s arguments that the decision was based only on SF’s say-so, that the investigation was unfairly one-sided, or that the respondent unreasonably failed to pursue further unnamed witnesses. The tribunal found it was reasonable for the respondent to require the claimant to identify relevant witnesses, and it noted that when the claimant raised more specific allegations about SF, those matters were pursued further during the disciplinary process.

On sanction, the tribunal held that it was within the reasonable range for the respondent to treat the threatening behaviour as gross misconduct and to dismiss summarily rather than impose a lesser sanction. It found that the claimant’s length of service, clean disciplinary record, the prior tensions between him and SF, and his complaints about social distancing and alleged provocation did not make the dismissal unfair in all the circumstances.