Miss J Rayner v W M Morrison Supermarkets plc Heard by CVP in Sheffield — 2021

The claimant, Miss J Rayner, worked for W M Morrison Supermarkets Plc as a facilities service manager. The dispute arose after she bought items from the staff sample shop on 30 November 2020, did not take them home the same day, and was stopped by security on 1 December 2020 when she could not immediately produce the itemised receipt. The tribunal found that the handbook required same-day removal of goods, but that the new November 2020 process requiring a management signature on the receipt had not been clearly communicated. It also found no dishonesty: the claimant had paid for the goods and had overpaid.

The tribunal accepted that the respondent had reasonable and proper cause to investigate the first stage of the matter in early December 2020. It also accepted that the claimant was under significant stress at the time, including family, health and pub-related pressures, and that she had been signed off unfit for work from 8 December 2020. The critical finding was that the second investigatory meeting on 15 December 2020, which used CCTV footage to probe the timing and sequence of the transaction when payment was not in dispute, was unnecessarily oppressive, heavy-handed and without reasonable and proper cause. On that basis, the tribunal held that the respondent's conduct seriously damaged trust and confidence.

The tribunal found that on 15 December 2020 the claimant resigned, using words to that effect during the meeting and then handing in her security and car park passes to other staff afterwards. It preferred the respondent's evidence over the claimant's later inconsistent accounts, but also found that she resigned in circumstances of extreme pressure and special circumstances. The respondent was entitled to wait and seek clarification before treating the resignation as final, and the claimant did not retract it. Even so, the resignation was held to have been in response to the respondent's repudiatory breach, so the claimant was constructively wrongfully dismissed and constructively unfairly dismissed. The tribunal also held that post-termination discoveries about use of email, printing and a reference did not make the claimant's conduct repudiatory or justify summary dismissal.

For wrongful dismissal, the tribunal awarded £3,855.55, calculated from five weeks' contractual sick pay and seven weeks' statutory sick pay during the notional notice period. For unfair dismissal, it awarded a basic award of £1,632 and a compensatory award of £3,956.35. The compensatory award was based on five weeks' contractual sick pay, ten weeks' SSP and nine further weeks' net pay to 31 May 2021, less £223.20 earned from Manpower. The tribunal found no basis to reduce either award for conduct and said the claimant would probably have resigned after pubs were allowed to reopen, but not until after giving 12 weeks' notice.

The breach of contract claim succeeded only in relation to the £15 spent on sample-shop goods that had not been returned. The separate bonus element failed because the bonus scheme was non-contractual and, on the tribunal's findings, the claimant would have been in her notice period when any bonus was paid. The tribunal noted a possible double-recovery issue between the wrongful dismissal damages and the notice-period element of the compensatory award, and invited further written submissions if the parties could not resolve that point.