Unrepresented and did not attend For the v Mr J Lassey — 2023

The claimant worked as a CCTV Controller from 26 November 2006 until 23 December 2022, when he was summarily dismissed for gross misconduct after the respondent said he had been asleep on duty on 1 September 2022. The tribunal first dealt with the claims that were no longer pursued: unpaid holiday pay and redundancy pay were dismissed on withdrawal, and the direct race discrimination claim was dismissed because the claimant did not attend and could not satisfy the evidential burden on that claim.

For the remaining unfair dismissal issue, the tribunal applied section 98 ERA 1996, British Home Stores v Burchell, and the band of reasonable responses authorities. It found that the respondent genuinely believed the claimant had committed the misconduct, that the investigation was timely and thorough, and that the procedure was fair. The tribunal accepted that the claimant was asleep for about 15 minutes on a sixth consecutive night shift and that his initial denials were not truthful.

The tribunal nevertheless held that summary dismissal fell outside the band of reasonable responses. It placed weight on the claimant's long and unblemished service, the brief and involuntary nature of the sleep, the absence of actual loss or damage, the fact that the shopping centre was closed and secure, and the point that sleeping on duty was not specifically listed as gross misconduct in the disciplinary policy. The tribunal considered that a final written warning would have been the appropriate sanction.

The unfair dismissal and wrongful dismissal claims therefore succeeded. The tribunal also recorded contributory fault on the claimant's part, and said that the extent of any reduction was to be determined at a remedy hearing. No remedy figure was assessed in the judgment supplied.