Ivan D’Almieda v Tesco Stores Limited Sitting At: London South In Person — 2022

Ivan D’Almieda was dismissed by Tesco Stores Limited on 25 April 2020 for gross misconduct after allegations that he had shown sexually explicit material on his mobile phone to two female colleagues, Antonia and Ashleigh, and had also made inappropriate comments to staff. The tribunal accepted that the reason for dismissal was conduct and identified the material allegations as showing an inappropriate photograph to Antonia in December 2019 and showing an inappropriate video to Ashleigh on 6 February 2020.

The tribunal found that the respondent genuinely believed the claimant was guilty of the misconduct alleged and that those beliefs were based on reasonable grounds. It relied on the witness accounts, the CCTV footage showing the claimant passing his phone to Ashleigh, and the contemporaneous notes taken during the investigation, disciplinary meeting and appeal. The tribunal also accepted that the conduct could amount to harassment and was capable of being treated as gross misconduct under Tesco’s disciplinary and social media policies.

The claimant argued that the investigation was flawed because the witnesses were not made available for direct questioning, that questioning was leading, and that the respondent failed properly to investigate his contention that complaints had been prompted by an earlier dispute about chicken products being kept behind the counter. The tribunal accepted that there were shortcomings in the way the malice allegation was handled at the investigatory stage, including the failure to retain a text message and the failure to apply the issue fully at that point, but found that the matter was sufficiently addressed later in the process and that the overall investigation remained within the range of reasonable responses.

The tribunal held that dismissal fell within the range of reasonable responses for a reasonable employer. It found that Tesco had taken account of the claimant’s length of service and previous clean record, but was entitled to treat the conduct as serious and to dismiss for gross misconduct. The unfair dismissal claim was therefore dismissed. In the alternative findings recorded on remedy, the tribunal said it would not have ordered reinstatement or re-engagement, would have applied a Polkey reduction of 70%, would have reduced any basic and compensatory award by 75% for contributory conduct, and would not have applied any ACAS uplift.