Mr L Jarvie v Represented by:10 Ms Morgan - Counsel [Instructed by DLG Legal Services] Poundstretcher Limited — 2024

Mr L Jarvie worked as a sales assistant at Poundstretcher’s Cardonald store from 1 May 2022. On 23 August 2024, the deputy manager reported that he had seen the claimant drinking a bottle/can of juice from store stock without paying. The respondent suspended him, investigated the matter, and proceeded under its disciplinary policy, which treated theft and unauthorised possession of company goods as gross misconduct. The claimant accepted in the investigation meeting that he had not paid for the drink, saying he intended to pay later.

The tribunal held that the respondent had a potentially fair reason for dismissal, namely conduct, and that Gary McNamee genuinely and reasonably believed the claimant had taken the drink without paying and had breached the staff purchases policy. It found the investigation by Frank Cullen was limited but reasonable in the circumstances, because the claimant admitted the conduct and did not give a fuller explanation at the time. The tribunal also accepted that Curtis Wright had no involvement in the dismissal decision beyond reporting the incident.

On procedure, the tribunal found that the respondent arranged a disciplinary hearing, postponed earlier dates when the claimant said he could not attend, and later arranged an appeal hearing. It rejected the claimant’s case that he thought the 11 October 2024 hearing had been cancelled, finding there had been a misunderstanding rather than any misleading by the respondent. It also held that the respondent was entitled to proceed in the claimant’s absence, and that any errors in dates on correspondence were more likely mistakes than evidence of prejudice.

Applying s.98 ERA 1996, the Burchell approach, and the band of reasonable responses, the tribunal concluded that dismissal fell within the range of reasonable sanctions. It therefore dismissed the unfair dismissal claim. For breach of contract, the tribunal held that taking the drink without paying was a repudiatory breach going to trust and confidence, so the respondent was entitled to dismiss summarily without notice. The notice pay claim was also dismissed.