Mrs O Fjerza v Tesco Family Dining Limited — 2020

Mrs O Fjerza brought claims arising from her pregnancy and from the respondent's disciplinary investigation. The tribunal heard live evidence from the claimant and from Mr Jailty, Mr James and Mr Draper. It gave little weight to statements from witnesses who did not attend. It also confined itself to the pleaded case and did not entertain additional allegations raised later in the proceedings.

On the factual issues, the tribunal rejected the claimant's account that she had been promised promotion after one month or moved back to Osterley against her will. It accepted the contemporaneous WhatsApp message showing she welcomed the proposal to return to Osterley as team leader, and found she was promoted within about five months of starting work. It also found that some adjustments had been made for her pregnancy, including provision of a chair, restrictions on duties, and a written risk assessment recorded on 10 January 2018 which she signed.

The tribunal found no evidence that the claimant was required to use dangerous chemicals, that the earlier slip in the pot wash was significant, or that the respondent prevented her from reporting incidents. It considered the respondent to have acted as a caring and concerned employer in making adjustments. It also found that the claimant's complaints about being forced to work long hours without a break were not reported at the time and were not supported by the contemporaneous text messages or medical records.

The dismissal-related complaints arose after a colleague reported suspected theft and Mr Draper reviewed CCTV stills and receipts. The tribunal found the respondent had a reasonable suspicion and was entitled to investigate, meet the claimant and suspend her during the process. It held that pregnancy was not a shield against disciplinary action and that the investigation and suspension were reasonable steps under the disciplinary procedure.

For the constructive dismissal case, the tribunal applied the mutual trust and confidence principles in Malik v Bank of Credit Commerce International SA and referred to Kaur v Leeds Teaching Hospitals NHS Trust. It found the respondent's conduct was not a repudiatory breach, the claimant did not raise a grievance, did not follow the Acas code, and resigned because she objected to the investigation rather than because of any breach by the respondent.

The tribunal therefore dismissed the claims of failure to provide a risk assessment, failure to offer alternative work, pregnancy discrimination, constructive dismissal, and automatic unfair dismissal under section 99 ERA 1996. It concluded that all of the claimant's claims failed and vacated the provisional remedy hearing.