Ms L Suding , Counsel For the v Mr T Welch — 2022

The claimant, Mr J Scales, returned to work on 17 November 2020 after a period of absence. The respondent received complaints from customers on Round 89 that milk had not been delivered, and video footage from two doorbell cameras showed bottles being delivered and then removed later by a roundsperson the respondent identified as the claimant. At the investigation meeting on 1 December 2020, the claimant denied taking milk from the first customer but accepted it was him once shown the footage; in relation to the second customer he said he had removed the milk because a colleague had asked him to do so.

The disciplinary hearing took place on 6 January 2021 and was conducted by Mr Mark Sidders. The tribunal found the claimant's account to be, at best, inconsistent and more likely untruthful, and accepted that the respondent was entitled to regard the conduct as deliberate and premeditated. It found the respondent carried out a fair and reasonable investigation, and that the complaints about missing lines of enquiry, witness handling, missing notes, and the outcome letter were trivial, minor and inconsequential in the circumstances.

Applying section 98(4) ERA 1996 and the guidance in Burchell and Post Office v Foley, the tribunal found that the respondent held a genuine belief that the claimant was guilty of misconduct on reasonable grounds after a reasonable investigation. It held that dismissal fell within the range of reasonable responses open to an employer faced with this conduct, and therefore the unfair dismissal claim was not well founded and was dismissed.

On notice pay, the tribunal held that the claimant's acts as captured on CCTV were the clearest and most egregious breaches of mutual trust and confidence and amounted to gross misconduct. It therefore found that the respondent was entitled to dismiss without notice, so the breach of contract claim in respect of notice pay was also dismissed.