Mr Watson, Counsel For the v Respondent — 2018

Mr K Teli joined Virgin Active in 2013, transferred to David Lloyd Leisure Ltd on 1 June 2017, and was dismissed with effect from 16 March 2018 after an investigation into discrepancies between PT voucher claims and swipe-record evidence. The tribunal found that the respondent had a potentially fair reason for dismissal related to conduct and applied section 98(2) and section 98(4) of the Employment Rights Act 1996, together with the Burchell and Hitt authorities and the range of reasonable responses approach.

The tribunal accepted that the respondent’s voucher system allowed scope for misuse, but found that the claimant had understood and used the system successfully for the first six months after transfer. It accepted Mr Street’s investigation and Mr Adcock’s dismissal decision as based on a genuine belief formed from that enquiry, and held that if the case had ended at dismissal the unfair dismissal claim would have failed. The tribunal also recorded that the respondent was entitled to rely on its own swipe records and was not required to interview every member or pursue every line of inquiry.

The claim succeeded because the appeal stage rendered the overall dismissal unfair. The tribunal held that Mr Henson relied on material considerations that had not been shared with the claimant, including a spreadsheet and other evidence, and that the claimant was not given the opportunity to answer those matters before the appeal was rejected. The tribunal relied on the principle that fairness is assessed as a whole, including post-dismissal events, and cited First Hampshire v Parhar for that approach.

The breach of contract/wrongful dismissal claim was not decided on liability at this hearing. It was adjourned to the remedy hearing, with contribution and Polkey issues also to be determined there. No compensation or notice-pay figure was fixed in this judgment.