Mr Michal Cabovsky v Asda Stores Limited — 2021

The tribunal accepted that the respondent dismissed the claimant for conduct, namely the belief that he had intentionally claimed expenses to which he was not entitled and had spent working time not doing productive work. It found there were no reasonable grounds for concluding that the expenses claim was dishonest: the claimant had openly explained the claim, gave the address where he stayed, and submitted it for scrutiny. The investigation into that allegation was also found to be outside the range of reasonable responses, including because of the involvement of Reece Burton and the failure to explore the claimant's position about transport.

On the working-time allegation, the tribunal found there were reasonable grounds to conclude that the claimant had spent some significant periods in non-productive activity, including excessive cigarette breaks, sleeping, and watching something on his phone. However, the respondent treated the expenses allegation and the working-time allegation as a composite basis for dismissal, and one significant part of that basis was seriously flawed. The dismissal was therefore unfair.

For remedy principles, the tribunal found a real possibility that the claimant could have been fairly dismissed for the non-productive work allegation alone and ordered a 50% reduction to the compensatory award. It also found the claimant's conduct culpable or blameworthy and reduced the basic award by 25%, but declined to make a further contributory-fault reduction to the compensatory award. The tribunal separately upheld the accrued holiday claim for 10.45 days and the wage deduction claim for unpaid salary and contractual sick pay from 2 to 9 January 2020, with sums to be calculated at a remedy hearing.