Mr D Abdillahi Elmi v Sodexo Limited — 2021

The claimant, a domestic assistant, was dismissed after the respondent accepted a report from a Trust monitoring officer that he had taken and eaten bread rolls in a ward kitchen. The Tribunal found that the respondent had a potentially fair reason of conduct, had carried out a reasonable investigation, and acted within the band of reasonable responses in accepting the monitoring officer's account and treating the claimant's continuing denial as relevant to trust.

The unfair dismissal claim succeeded because of procedural unfairness. The disciplinary invitation misstated the day of the hearing and gave the claimant one working day less notice than the respondent's procedure required. In context, including the claimant's request for postponement, the limited time with a union representative arranged by the respondent, and the fact that English was not his first language, the Tribunal held that the procedure was unfair.

For remedy, the Tribunal held that the claimant would have been dismissed in any event had a fair procedure been followed, so a 100% Polkey reduction applied except for the additional six days' net pay that a fair process would have allowed. It made no contributory conduct reduction because the respondent had not called the direct eyewitness and the Tribunal was not prepared to find as a fact that the claimant had taken the bread.

The race discrimination claim was dismissed. The Tribunal held that the claimant had not shown the required "something more" beyond dismissal and race to shift the burden of proof. It found no evidence of racial motivation by the Trust monitoring officer who initiated the matter, or by the respondent's decision makers, Kath Dennis and Kevin Clifton.