Mr Nathaniel Decker (Legal representative) For the v Mr Steve Peacock (Solicitor) — 2020

The claimant had been employed since 11 November 2002 as an Operational Postal Grade and had been off sick since September 2019 after injuring his right shoulder. Occupational health had assessed him in June 2020 as unfit for his substantive role but fit for an adjusted indoor role with minimum manual handling. The dismissal arose after he was seen on 4 August 2020 in a Nisa store in Cheshunt by a manager, Ms Kelly Bickerstaff, who said he was carrying a crate of soft drinks, went behind the till area, and then ducked down or hid when he saw her.

The respondent investigated the allegation through Mr Wayne Millard and Mr Amarjit Johail, held a fact-finding interview on 8 August 2020, and then a formal disciplinary hearing before Mr Paul Johnson on 28 August 2020. The claimant denied working in the shop and challenged the notes, said Ms Bickerstaff had fabricated the allegation, and relied on letters from the shop owner and a co-worker as well as medical evidence. Mr Johnson nevertheless concluded that the claimant had breached attendance standards by performing manual lifting and handling while on long-term sick absence, and dismissed him summarily for gross misconduct without notice.

On appeal, Ms Anita Madden conducted a full rehearing, obtained further information from Ms Bickerstaff and Mr Millard, and rejected the appeal. The tribunal preferred the evidence of Ms Bickerstaff and Mr Millard, found the claimant had been trying to avoid being seen in the shop, and accepted that the shop employees were closing ranks to protect him. It found that Mr Johnson and Ms Madden were entitled to reject the claimant's contrary evidence and the supporting letters from the shop owner and colleague.

The tribunal held that Mr Johnson genuinely believed the claimant had committed the alleged gross misconduct and that belief was based on reasonable grounds after a reasonable and thorough investigation. Applying s.98(4) of the Employment Rights Act 1996 and the range of reasonable responses approach, it concluded that dismissal was not outside the band of reasonable responses. It also held that the claimant's conduct amounted to a fundamental breach of contract, so the respondent was entitled to terminate summarily. Both the unfair dismissal and wrongful dismissal claims were dismissed.