Claimant v Respondent — 2023

The tribunal considered the respondent's application for reconsideration of the reserved judgment sent to the parties on 21 August 2023. It refused the application because there was no reasonable prospect of the original decision being varied or revoked. The tribunal therefore left the earlier finding in place, including the conclusion that the alleged misconduct should not have been categorised as gross misconduct.

The tribunal said that, although the claimant had not originally pleaded that stores accuracy logs were not completed in stores or that she never saw another employee completing them, the claimant's witness evidence containing that material had been served in advance of the final hearing and was discussed at the outset of the hearing. The evidence remained in the witness statement and was tested in cross-examination by both sides, so that part of the case was allowed to proceed.

The same approach was taken to the claimant's evidence that she had passed the in-patient logs in dispensary. Even if the tribunal were wrong about those pleading points, it held that Ms Darby's investigation report did not give sufficient detail about when the claimant was asked to complete either set of logs, by whom, or what her response was. On that basis, the tribunal held that Ms Lai did not have enough information to categorise the conduct as a wilful failure or flagrant refusal without a satisfactory reason.

The tribunal said the same conclusion followed on reconsideration: the alleged misconduct was not properly treated as gross misconduct. Employment Judge Macey Date refused the application on 2 October 2023.