Mr F Mortin, Counsel For the v Respondent — 2021

The claimant was found to have been disabled at the material time. He worked in the warehouse at Asda's High Wycombe store, had long-standing back problems including sciatica and disc prolapse, and had been on light duties before the events leading to dismissal. The tribunal accepted that he had limited English and that an interpreter assisted him during the hearing. The dismissal arose after he took marked-down goods on 17 November 2019 worth £13.29, left them in the warehouse, paid for them on 19 November, and then took them back to the warehouse before the end of his shift.

By a majority, the tribunal found that the respondent's reason for dismissal was conduct, namely breach of the Shopping at Work policy, rather than disability or something arising from disability. It accepted that Mr Chapman had a genuine belief that there had been misconduct, but held that the investigation was not reasonable in the circumstances. The tribunal was critical that no proper investigation was carried out into the claimant's account that other colleagues had carried out similar markdown purchases, and it found there was a complete failure to explore that evidence. The tribunal also held that Mr Hussain did not consider any meaningful mitigation or alternative sanctions before deciding to dismiss.

The dismissal was found to be both procedurally and substantively unfair. The tribunal said the procedure broadly followed the respondent's policy and the ACAS Code, but had reservations about the documents available to the claimant and his ability to understand the process. It held that no reasonable employer would have dismissed in the circumstances and that the claimant was entitled to pay in lieu of notice because the misconduct was not serious enough to justify summary dismissal. The wrongful dismissal claim therefore succeeded.

The direct disability discrimination claim was dismissed. The discrimination arising from disability claim under s.15 Equality Act 2010 was also dismissed by the majority, although Mr McLean dissented and would have found that the dismissal was unfavourable treatment because of the claimant's inability to fill all aspects of his contractual role due to limited mobility. The claimant did not seek reinstatement or re-engagement. Remedy was left to a later hearing listed for 5 November 2021, and the tribunal indicated that it would reduce any compensatory award by 10% because the claimant unreasonably failed to appeal the dismissal.