Mr N Pengelly v Sainsbury Supermarkets Limited — 2021

Mr N Pengelly was employed as an online delivery driver at Sainsbury Supermarkets Limited's Didcot store and was summarily dismissed on 5 August 2020. The tribunal found that the dismissal arose from an incident on 19 July 2020 in which the claimant had an exchange with Ms Andrea Smith about cancelled deliveries and his working hours. Witness evidence from Ms Smith, Ms Tracy Grimly and other colleagues described the claimant as shouting, raising his voice and gesticulating, while the claimant maintained that he had been having a firm but ordinary business discussion.

The tribunal accepted that Mr Fenton, the dismissing manager, genuinely believed the claimant had behaved aggressively and inappropriately towards Ms Smith. It found that he had reasonable grounds for that belief, based on the claimant's own account in the disciplinary meeting, the CCTV footage, and the witness statements describing the incident. Applying the conduct dismissal principles under section 98 of the Employment Rights Act 1996 and the Burchell approach, the tribunal held that the respondent's investigation was within the range of reasonable responses.

The tribunal accepted that there were process flaws, including the late production of statements from Ms Smith, Ms Grimly and Ms Preece at the disciplinary hearing rather than earlier in the process. It found that this was a breach of the ACAS Code of Practice paragraph 9, but decided that the breach was not material enough to make the dismissal unfair because the claimant was given time to consider the statements and an opportunity to answer them. The appeal officer, Mr Taylor, also investigated the claimant's grounds of appeal and concluded that the dismissal should stand.

The tribunal concluded that dismissal was open to a reasonable employer and that, although a warning might have been possible, the decision to dismiss fell within the band of reasonable responses. It rejected the claimant's case that the incident was merely a business discussion, and found that the claimant's attitude and his stated intention that he would do it again supported the respondent's conclusion that gross misconduct had occurred. The unfair dismissal claim was therefore dismissed.