Ms N Moncrieffe v Tesco Stores Ltd — 2021

The claimant was summarily dismissed for gross misconduct after an incident on the shop floor involving fighting with a colleague, DS. The respondent relied on conduct as the reason for dismissal. The Tribunal accepted that there had been an altercation and that the claimant had gone to the area where DS was working, but it found significant defects in the investigation and disciplinary process.

The Tribunal found that the investigator formed a firm view at an early stage about who was principally at fault, questioned DS and the claimant differently, allowed hearsay evidence supportive of DS while declining to seek input from witnesses suggested on the claimant's behalf, and did not provide the claimant with the interview records before the disciplinary hearing. It also found that the disciplinary manager's decision was to a large extent pre-determined, including because he had already decided DS's disciplinary outcome and had spoken with the investigator before the claimant's hearing.

The Tribunal concluded that the appeal did not cure the earlier defects, including because the appeal manager had been provided with a document effectively setting out reasons to uphold the dismissal and did not bring a sufficiently fresh and objective consideration to the whole matter. The dismissal fell outside the range of reasonable responses and was unfair. However, the Tribunal found a very high likelihood that the claimant would have been dismissed at the same time in any event after a fair process, and applied a 90% Polkey reduction; it also stated that the basic award should be reduced by 90%. Remedy was adjourned.