Ms. S Mcmillan v Wilko Limited — 2022

The claimant, Ms S Mcmillan, was dismissed after selling a knife to a 16-year-old customer on 30 April 2021 at the respondent's Wellingborough store. The tribunal found that the sale was admitted, that the respondent treated the matter as misconduct connected with its Challenge 25 policy, and that the claimant's explanation was that she had checked the customer and believed she looked over 25.

Applying section 98 ERA 1996 and the approach in British Home Stores v Burchell, the tribunal held that the respondent had a genuine belief that the claimant had not followed the Challenge 25 policy, that belief was based on reasonable grounds, and the investigation was reasonable. The tribunal accepted that the respondent was entitled to rely on the fact that a police test purchaser was unlikely to look over 25, and it found that the claimant's account was not persuasive at the investigatory, disciplinary, or appeal stages.

The tribunal also found that the procedure, taken as a whole, was fair and within the range of reasonable responses. Although there were imperfections, including the lack of CCTV review at the investigation stage, the use of a potential witness as note taker at the first appeal meeting, and the claimant not receiving one invitation email because her email address had changed, those matters were addressed or did not affect the outcome. The appeal process considered the guidelines, the lack of CCTV, and the comparator case relied on by the claimant.

On remedy, no award was made because the unfair dismissal claim failed. The tribunal held that summary dismissal for gross misconduct was within the band of reasonable responses, taking account of the seriousness of selling an age-restricted product to an underage customer, the claimant's training, and the respondent's finding that retraining would not change the position.