Ms A Fisher v Cruise Clothing Limited — 2023

The tribunal first substituted Cruise Clothing Limited as the respondent. It found that the written statement of terms and conditions signed in March 2014 was the best evidence of the parties' agreement and identified Cruise Clothing Limited as the employer. The fact that payroll was run through Sportsdirect.com Retail Limited, and that Frasers Group managers carried out the dismissal process, did not displace that contractual position, and there was no evidence of any novation or TUPE transfer.

On the unfair dismissal claim, the tribunal found that the reason for dismissal was conduct: the respondent believed the claimant had offered cannabis to Ms Elliott and Ms Camm and had failed properly to deal with the cannabis found in the store. Applying section 98 ERA 1996 and the Burchell test, it held that the decision-makers genuinely held those beliefs, had reasonable grounds for them, and carried out an investigation that, although not flawless, remained within the range of reasonable responses. The tribunal criticised the failure to provide some requested documents and to pass appeal documents to the appeal officer, but held that those omissions did not make the dismissal unfair.

On the wrongful dismissal claim, the tribunal made its own findings of fact. It did not find proved the allegation that the claimant offered cannabis to either employee. It gave limited weight to the hearsay statements from Ms Elliott and Ms Camm because they were not tested in evidence and contained some inconsistencies, while accepting the claimant as reliable on that specific issue. It did find that she mishandled disposal of the cannabis by failing to seek advice from a senior manager, leaving it for about 24 hours, and delegating disposal to a junior employee, but held that this amounted to misconduct rather than gross misconduct under the Mbubaegbu approach.

The result was that the unfair dismissal claim was dismissed, but the wrongful dismissal claim succeeded because the respondent had dismissed the claimant without her full contractual notice. No remedy was quantified in the liability judgment. The tribunal listed a later remedy hearing, and noted that if the parties could not agree, compensation would likely turn on notice pay less any earnings in the notice period, together with any outstanding issue on the construction of the contractual notice clause.