Mr E Hughes v Represented by:- Ms L Neil – Solicitor Costco Wholesale UK Limited — 2019

Mr Hughes, who started work for Costco on 18 September 2004, was dismissed on 5 November 2017 after disciplinary proceedings concerning an expenses claim form and ATS sheets. The tribunal found that the respondent had a potentially fair reason for dismissal, namely misconduct, and that Mr Fenn had a genuine belief, based on Mr Nevitt’s investigation, that Mr Hughes had overclaimed expenses and inaccurately completed the ATS sheet. The tribunal also accepted that there were reasonable grounds for that belief, including that the expenses claim involved about £8.50 and that the ATS record did not match the CCTV and working pattern evidence.

The dismissal was nevertheless found unfair because the investigation and procedure were not reasonable in all the circumstances. Mr Hughes was given about two hours’ notice of the investigatory meeting on 2 October 2017, was not told who had raised the concerns, and was not given a reasonable opportunity to prepare or answer the allegations. The tribunal found Mr Nevitt to be agitated and aggressive at that meeting, including telling the claimant, “I don’t want your bullshit,” refusing breaks until the fourth request, and not keeping an open mind. It also found that Mr Fenn relied on that flawed investigation, did not maintain an open mind, and took into account matters for which there was no evidence.

The appeal did not cure the defects. Ms Knowles accepted Mr Nevitt’s apology for being aggressive, did not speak to Mr Forbes, and did not properly investigate whether Mr Nevitt’s behaviour affected the process. The tribunal also noted that no letter explaining the reasons for dismissal was sent. Applying s.98(4) ERA 1996, BHS v Burchell, the ACAS Code, and the band of reasonable responses test, it held that a reasonable employer would not have dismissed in these circumstances. The tribunal found that Mr Hughes’ conduct contributed to his dismissal and reduced both the basic and compensatory awards by 50% under Polkey/contributory conduct principles, but rejected any further reduction for future loss because the post-dismissal earnings difference was only £8 per week and was de minimis.