D Stevens v Asda Stores Limited — 2026

Mr Stevens confirmed that his sole complaint was ordinary unfair dismissal and that he was not pursuing a whistleblowing claim. Asda Stores Limited summarily dismissed him on 3 March 2025 for using a mobile phone and failing to wear goggles and a visor while refuelling an HGV with LNG on 17 February 2025. The tribunal found that this conduct was the reason for dismissal and that the respondent genuinely believed he had committed misconduct, which he had admitted and which had been witnessed and recorded on CCTV.

The tribunal found it was within the band of reasonable responses for the respondent to conclude that Mr Stevens had received at least verbal and “show and tell” training and knew that he was required to wear the PPE and not use his mobile phone while refuelling. It accepted that such failures were sufficiently serious to warrant dismissal for gross misconduct. The missing or displaced warning sign on the incident date, the absence of an immediate suspension or near-miss report, the use of the same note-taker, and the evidence concerning other employees did not make the dismissal unfair.

The claim nevertheless succeeded because the handling of the appeals fell outside the band of reasonable responses. At the first appeal, Mr Gamble did not adequately investigate Mr Stevens’s challenge concerning the January 2024 training or his complaint that Mr Dacey had approached the reconvened disciplinary hearing with a closed mind. He also did not give Mr Stevens an opportunity to comment on the information obtained during the further investigation before deciding the appeal.

The second appeal did not remedy those defects. Mr Spooner treated the allegation that Brett Jones had completed the November 2024 refresher training on Mr Stevens’s behalf as serious, but spoke to Mr Jones informally by telephone, made no record of the conversation, did not disclose Mr Jones’s account to Mr Stevens, and did not obtain evidence from the person believed to have conducted the original training. The tribunal also did not accept that Mr Spooner was impartial, given his substantive reporting relationship with Mr Gamble. It declined to make a Polkey reduction because the outcome of a reasonable investigation and fair process was too speculative.

The tribunal limited earnings loss because Mr Stevens had not claimed Jobseeker’s Allowance after eight weeks and could reasonably have obtained interim agency work after twelve weeks. It calculated a basic award of £16,100 and compensatory loss of £10,115.48, applied a 5% ACAS Code uplift to the compensatory award, and then reduced both awards by 70% for contributory fault. The final awards were £4,830 as the basic award and £3,186.38 as the compensatory award, totalling £8,016.38.