Mr S Tracey v Asda Stores Limited — 2022

The Claimant was dismissed after the Respondent concluded that he had taken and consumed cheese and bacon bites from a customer's order and left the packet and other litter near the customer's property. The Tribunal found that the Respondent's reason for dismissal was its belief in the alleged misconduct, which was a conduct reason under section 98 ERA 1996.

For unfair dismissal, the Tribunal held that there were reasonable grounds for the Respondent's belief. It considered the photographs, the Claimant's receipt and salad, his delivery route and break location, and the reported missing item from an earlier delivery. The Tribunal also found that the Respondent's investigation, including its consideration of the Claimant's allegation that a colleague had set him up, was objectively reasonable overall, although the failure to check van CCTV caused concern.

The Tribunal concluded that the disciplinary process was fair overall and in accordance with the ACAS Code, and that dismissal was within the band of reasonable responses. On wrongful dismissal, the Tribunal found on the balance of probabilities that the Claimant committed the misconduct alleged, that this amounted to retail theft and gross misconduct under the Respondent's policies, and that dismissal without notice was therefore not wrongful.