in person assisted by Ms N Hossain (claimant’s daughter) For the v Respondent — 2023

The claimant worked as an export clerk from 5 June 2017 until his dismissal on 22 February 2022. The tribunal found that concerns about his working hours had been raised before, including discussions in 2018 and 2019, and that in January 2022 swipe-card data showed a substantial shortfall in the hours he had worked. After an email warning on 21 January 2022 and an investigation meeting on 1 February 2022, Ms Matthews conducted a disciplinary hearing on 22 February 2022 and dismissed him for gross misconduct. The tribunal accepted that she genuinely believed he had repeatedly left early and worked materially less than his contracted hours, that she had reasonable grounds for that belief, and that the investigation was reasonable under the British Home Stores v Burchell approach.

On the unfair dismissal claim, the tribunal held that the respondent acted within the range of reasonable responses under section 98(4) of the Employment Rights Act 1996. It rejected the argument that the process was unfair, finding that the earlier discussions with Mr Robinson made clear that the claimant had to be on site for his contracted hours, that the respondent was entitled to rely on those discussions even though they were not formal warnings, and that it was reasonable for Ms Matthews to treat the claimant's early departure on the same day as the 21 January 2022 warning as a serious matter. It also found the investigation, disciplinary hearing and appeal complied with a fair procedure and that the appeal was properly handled by Mr Parkinson.

On the direct discrimination complaints, the tribunal found that the claimant, a Muslim of Bangladeshi origin, was not treated less favourably because of race or religion or belief. It accepted that the respondent refused his request to take lunch at the end of the shift because that would not have complied with the Working Time Regulations, while the comparator had a different, pre-existing arrangement for a shorter break during his shift. It also found that the claimant and his comparator had different contracts and shift patterns, which explained the different start times, and that the heavier workload on the claimant's weekday shifts had operational reasons. The tribunal further held that the different disciplinary outcomes were explained by material differences, including the comparator's lack of previous warnings and the absence of a same-day early departure after warning, and dismissed the discrimination claims.