Mr A Lee v Bestway Panacea Holdings Limited — 2020

Mr A Lee was employed as a store manager from January 2013 and by the time of dismissal was managing the Marton store in Blackpool. He received a final written warning on 12 June 2019 after a disciplinary process about inappropriate language on 30 March 2019. He appealed and also raised a grievance; the grievance was partly upheld but the final written warning was not overturned.

In October 2019 the respondent suspended him after concerns were raised by two employees about unprofessional conduct. An investigation was carried out, including interviews with store colleagues, managers, and the claimant. The investigator concluded there was clear evidence to support allegations that he had used inappropriate language and similar comments, and he was invited to a disciplinary hearing on 6 November 2019. At that hearing Mr Evans found four allegations proved, including expletive comments, a comment about a patient, and a sexualised remark to a colleague. He concluded that the conduct amounted to gross misconduct and summarily dismissed the claimant on 15 November 2019. The appeal, heard by Ms Hand-Griffiths on 17 January 2020, was not upheld.

The tribunal applied the conduct dismissal framework under section 98(4) ERA 1996 and British Home Stores v Burchell. It held that the final written warning was not manifestly inappropriate and did not need to be reopened. The tribunal accepted that Mr Evans had a genuine belief in misconduct on reasonable grounds and that the investigation, taken as a whole and including follow-up enquiries after the hearing about the workplace culture, was reasonable. It also found that the unpursued allegation made against the claimant during the investigation did not render the process unfair.

On sanction, the tribunal found that dismissal was within the range of reasonable responses for the proven conduct, particularly taking account of the most serious upheld comment and the surrounding circumstances. It rejected the claimant's procedural challenge, including his criticism of the email address used for one post-hearing enquiry, and held that the dismissal was fair in all the circumstances. Because the dismissal was found to be fair, the tribunal did not need to consider contributory fault or Polkey.