In Person For the v Respondent — 2022

The Tribunal corrected the respondent name to Sainsburys Supermarkets Limited and found that the claimant had been employed as a trading assistant from 10 July 2015 until his summary dismissal on 21 November 2019. The dismissal followed reports that, while the claimant was signed off sick with a toe infection and receiving sick pay, he had been seen working at the Mina Cash and Carry Store on three occasions in late October and early November 2019. The Tribunal recorded that the claimant was suspended, investigated, invited to disciplinary and appeal meetings, and attended each stage with a colleague translating for him.

On the unfair dismissal claim, the Tribunal applied section 98 of the Employment Rights Act 1996 and the Burchell approach. It found that the respondent genuinely believed the claimant had committed misconduct, that the belief was based on reasonable grounds, and that the investigation was reasonable. The Tribunal relied on the written statements from three colleagues, the photographs, and the claimant’s own inconsistent explanations for being at the Mina Store. It also found that the procedure was fair, including that the claimant had the opportunity to respond at the investigatory, disciplinary, and appeal stages.

The Tribunal held that dismissal fell within the band of reasonable responses open to the respondent. It accepted that the alleged conduct was serious because the respondent reasonably believed the claimant was drawing sick pay while working elsewhere, and that this could damage trust and confidence. It therefore dismissed the unfair dismissal claim.

On the wrongful dismissal claim, the Tribunal applied the common law question whether the claimant had committed conduct amounting to a repudiatory breach of contract. It found, on the balance of probabilities, that the claimant had been guilty of the misconduct alleged and that this justified summary dismissal without notice. The wrongful dismissal claim was therefore also dismissed. No monetary award was made.