Mr N Ashby v T J Morris Limited T/A Home Bargains AT A FINAL HEARING Heard: Remotely, by CVP — 2021

The tribunal found that in January 2019 the respondent discovered repeated breaches of security, clocking and no-smoking procedures at the Skegness store, including doors being left open and breaks being taken without clocking out. Mr Ashby had been trained in the respondent’s systems, accepted in interview that he knew the procedures, and the tribunal found there was reasonable and proper cause for the ensuing investigation and disciplinary process. It also found that the complaint about being rostered to open the store alone was accepted by the respondent and was not pursued as a disciplinary matter once the rota issue was understood.

On the disability discrimination claim, the tribunal accepted that Mr Ashby was disabled by anxiety and depression, but it held that he did not prove that his disability required him to take more frequent or extended breaks, and in any event the disciplinary action was not about the taking of breaks as such. The tribunal found the real reason for the disciplinary process was the security and clocking breaches, not any disability-related need for breaks. It therefore rejected the s.15 EqA 2010 claim.

On the constructive dismissal claim, the tribunal applied Western Excavating v Sharp, Mahmud v BCCI, Omilaju and Kaur. It rejected the allegations that Steve Carter, Tracey Dales, the grievance process, the handling of the complaint about Mr Dales, the CCTV point, the WhatsApp issue, or the alleged pre-determination of the outcome amounted to conduct destroying trust and confidence. It found that several matters were either not made out, not attributable to the respondent, or had been reasonably handled under the respondent’s grievance and disciplinary policy.

The tribunal concluded that the matters relied on by Mr Ashby, whether taken individually or cumulatively, did not amount to a repudiatory breach of the implied term of trust and confidence, and in any event some earlier matters had been affirmed by continued working. It therefore held that he was not constructively dismissed and dismissed both claims in full. No remedy was awarded.