Mr A Kelly v Represented by:10 Mr Bryce - Solicitor B&M Retail Limited — 2020

Mr A Kelly was employed by B&M Retail Limited from 12 April 2014 and became a Store Manager in March 2019. In November 2019 the respondent investigated allegations relating to his treatment of Alex Rutherford and to the recording of Rutherford’s hours on the time and attendance system. The tribunal found that the claimant admitted paying Rutherford £40 in cash for 8 hours worked and admitted that, in the relevant week, Rutherford worked 20 hours but only 12 hours were logged and processed on the respondent’s system.

The respondent dismissed the claimant for conduct after a disciplinary hearing chaired by JT. The tribunal accepted that conduct was a potentially fair reason for dismissal under s98(2)(b) ERA 1996. Applying the Burchell approach, it found that JT genuinely believed the claimant was guilty of the misconduct alleged, that there were reasonable grounds for that belief, and that a reasonable investigation had been carried out. The tribunal also accepted that JT was entitled to conclude that the claimant’s conduct amounted to gross misconduct.

The claimant argued that his treatment was inconsistent with other managers who engaged in prepayment and that JT was not impartial because he set sales forecasts linked to staffing costs. The tribunal rejected those arguments. It found there was no evidence that other managers were engaged in the same practice, and in any event the suggested prepayment scenario was not truly parallel because it did not involve paying cash in hand and altering records in the same way. The tribunal also rejected the suggestion that JT had prejudged the matter.

On procedure, the tribunal noted that the claimant was not initially provided with all investigation notes with the disciplinary invite, but he was given the missing notes before the hearing and time to read them. It found that the respondent informed him of the allegations, provided the relevant evidence, allowed him to respond and appeal, and followed its internal procedure fairly. Applying s98(4) ERA 1996 and the band of reasonable responses approach, the tribunal held that dismissal was fair in all the circumstances and dismissed the claim.