In person For the v Respondent — 2024

The claimant was employed as a Warehouse Operative from 21 August 2011 until his dismissal with effect from 25 August 2023. The tribunal found that the Warehouse Flex Peak Agreement formed part of his contract of employment by way of a collective agreement, and that it entitled the respondent to require flex-down and, during defined peak periods, flex-up. The claimant had raised concerns and a grievance earlier in 2023 about being asked to leave work before completing his hours, but the grievance was rejected and the appeal was not upheld.

The dismissal followed the claimant's repeated refusal to flex-up on 30 and 31 July 2023 and again on 17 August 2023, together with leaving the site without permission. The tribunal accepted that he was aware of the Flex Policy and had been told that the hours he was being asked to work were banked hours already owed to the respondent because of earlier flex-downs. It found no evidence that he had been singled out or that managers had manipulated the policy against him, including after his employment tribunal claim about sick pay.

Applying s.98(2)(b) and s.98(4) ERA 1996, the tribunal held that the reason for dismissal was conduct and that the respondent acted reasonably in treating that conduct as sufficient reason to dismiss. It found the respondent had carried out a reasonable investigation, followed a fair procedure, and was entitled to take the decision to dismiss in circumstances where the claimant had already received a 12-month final written warning for the same behaviour and had made clear at the disciplinary hearing that he would not comply with the Flex Policy going forward. The unfair dismissal claim was therefore dismissed.