Members: Mr H P Boyd Mrs A J Middleton Ms Kate Coventry v Represented by:Mr M Briggs -Solicitor — 2018

The respondent operated the Complex in Ashton Lane, Glasgow, and the dispute arose out of a staff meal discount practice on The Lane till. Staff were entitled to a 50% discount, but the till also allowed a 20% button to be used. In July 2017 the second claimant posted on Facebook about what he described as an "exploit". After management reviewed till reports and interviewed staff, the first and second claimants admitted using the additional discount for their own meals, the fifth claimant admitted under-ringing his own meals, and the tribunal accepted that the third, fourth and sixth claimants did not themselves under-ring the till, although they knew multiple discounting was happening and allowed colleagues to use their fingerprints.

The tribunal dismissed the wrongful dismissal claims of the first, second and fifth claimants because they had admitted material under-ringing and were not contractually entitled to the extra 20% discount. By contrast, it upheld the wrongful dismissal claims of the third, fourth and sixth claimants. It found that their awareness of the practice, and the fact that other staff used their fingerprints, did not amount to a material breach of the implied duties of trust and confidence or fidelity. The tribunal also found that the bar staff in The Lane were not given specific instruction or training to supervise colleagues' food orders.

The first and second claimants' unfair dismissal claims were upheld under section 98 of the Employment Rights Act 1996. The tribunal accepted that the reason for dismissal was conduct and that there had been a reasonable investigation, but it found that Mrs Swan treated dismissal as an automatic outcome after the earlier dismissals, did not properly weigh mitigation, and that Mr Thomas did not approach the appeals with an open mind. The tribunal found contributory fault of 30% for the first claimant and 100% for the second claimant, but did not decide remedy at this stage. The respondent conceded the first claimant's section 11 Employment Relations Act 1999 complaint; the second and third claimants' section 11 complaints were dismissed because they had indicated Ms Collins as their companion, so the respondent had not refused the companion they chose.