Mr W H Lebbe v Martin McColl Limited — 2021

Mr W H Lebbe was the store manager at Martin McColl Ltd's East Ham store. The tribunal found he had been trained on the CMS fingerprint time-recording system in September 2018 and that, in early March 2019, Mr Andrew Odish and Ms Eileen Lawrence met him to discuss reducing overheads at the store because it was loss-making. The tribunal accepted that this was a management discussion about staffing and budgets, not a disciplinary meeting, and found no evidence that Mr Odish asked why so many Asians worked at the store or imposed race-related treatment.

On 23 April 2019 an anonymous complaint alleged that the Claimant had been recording hours he had not worked. Mr Odish investigated the CMS records and CCTV for April 2019 and concluded that there were discrepancies on a number of dates, including 4 and 5 April, amounting to 7 hours and 15 minutes claimed when there was no evidence that he had worked those hours. After an investigation meeting on 2 May, the Claimant was suspended, invited to disciplinary hearings, and given opportunities to respond and to see the CCTV material. Mr Gibbs concluded that he had deliberately falsified the company records and summarily dismissed him for gross misconduct on 26 July 2019; the appeal to Mr Gary North failed.

The tribunal held that the reason for dismissal was misconduct, not redundancy or the Claimant's pay level, and applied BHS v Burchell and Iceland Frozen Foods v Jones under section 98(4) ERA 1996. It found that the employer had a genuine and reasonable belief in gross misconduct after a reasonable investigation, and that summary dismissal fell within the band of reasonable responses. On the race claims, the tribunal held that alleged incidents in March and early May 2019 were out of time when the ET1 was presented on 16 December 2019, that any continuing act ended on 2 May 2019, and that time should not be extended. In any event, it found no facts from which direct race discrimination, harassment, or victimisation could be inferred. The grievance of 29 May 2019 and its appeal were not upheld.