Mr A Singh v MSG Scotland Ltd — 2020

The claimant brought a single claim for unfair dismissal arising from his summary dismissal by MSG Scotland Ltd for gross misconduct. The tribunal found that the respondent had established conduct as the reason for dismissal under s.98(1) and (2) of the Employment Rights Act 1996, and that Mr Penman genuinely believed the claimant had been guilty of the first allegation of falsifying records on the Pulse system. The tribunal accepted that the claimant had been involved in at least some of the food-transfer transactions and that many of the entries were inconsistent with stock, cash and mileage records, involved SK Group stores rather than respondent stores, and were difficult to reconcile with the claimant's explanations.

In assessing fairness under s.98(4), the tribunal applied the Burchell approach and the band of reasonable responses test. It found that Mr Penman was entitled to hold the belief that the claimant had committed gross misconduct, relying on the number and variety of suspicious transactions, the geographic spread of the stores involved, the lack of credible mileage explanations, and the claimant's repeated inability to give satisfactory answers at the disciplinary hearing. The tribunal also noted that the claimant's explanations were often possibilities or guesses rather than clear accounts of what had happened.

The tribunal had concerns about the process because there was no separate investigation report, the grievance material was not fully provided to the claimant, and Mr Penman's post-hearing investigation outcome was not shared before dismissal. However, it held that these matters did not take the case outside the band of reasonable responses because the claimant had not asked for further documents, said he generally understood the report, had access to Pulse and other records before dismissal, and did not follow up after saying he would look into matters. The appeal, heard by Mr Buntin, was also found to have cured any earlier procedural concerns.

The claim was therefore dismissed. The tribunal added that, had it found procedural unfairness, it would in any event have reduced any award to nil under Polkey and would have found 100% contributory conduct, but no remedy arose because the dismissal was held to be fair overall.