Mr J L Hermosa Mateos v Whitbread Group plc — 2019

The Claimant was employed as Kitchen Manager and was dismissed for gross misconduct following identified food safety failings. The Tribunal accepted that the failings were serious and that, without mitigating factors, a reasonable employer could have treated them as gross misconduct. However, it found the investigation outside the band of reasonable investigations because the Respondent did not interview the current General Manager about the Claimant's ability to cope and did not adequately investigate the Claimant's health after he raised concerns during the disciplinary process.

The Tribunal found the Claimant was disabled due to the continuing effects of his bowel condition, pain, medication, and resulting impact on concentration, memory and energy levels. It found no contributory fault, but held there was a 60% chance the Claimant would have been fairly dismissed even after a fair process, resulting in a 60% reduction to the unfair dismissal award.

On reasonable adjustments, the Tribunal found the Respondent applied a practice of existing staff covering short-term absences, which placed the Claimant at a substantial disadvantage when he worked around 68 hours during the relevant week. It held the Respondent ought to have known of the disadvantage and should have taken steps to reduce the impact on his hours. On section 15, the Tribunal found the food safety failings were at least partly caused by consequences of the Claimant's disability and that dismissal was not proportionate, particularly given the understaffing and failure to make the reasonable adjustment.