Miss L Dunn v Supermarkets plc — 2019

Miss L Dunn worked as a customer assistant/cashier at the respondent's Dundee supermarket from 4 November 2013 until she was dismissed for gross misconduct on 20 December 2018, following an incident on 1 December 2018 involving a customer and an energy drink can. The respondent alleged that she behaved inappropriately towards the customer and used abusive language on the shop floor. The claimant denied swearing, but accepted that she was upset and had raised her voice after being soaked in sticky drink and dealing with significant health and personal difficulties, including cancer treatment history, depression, and a forthcoming brain scan.

The tribunal accepted the claimant as credible and reliable. It found that the respondent's investigation was not reasonable because it did not interview Sophie Orr, the checkout supervisor, and did not interview the customers whose names and phone numbers had been provided. It also found that the investigator and later decision-makers did not keep an open mind or properly explore both sides of events in line with the respondent's own disciplinary policy. On the evidence, the tribunal held that no reasonable employer would have failed to interview Sophie Orr and that the respondent did not have reasonable grounds for its belief at the point of dismissal.

Applying section 98(4) ERA 1996 and the Burchell line of authority, the tribunal held that the dismissal was unfair. It observed that if a proper investigation had been carried out and misconduct then established, dismissal might still have fallen within the range of reasonable responses, but that was not the process adopted here. The tribunal rejected a further Polkey reduction, but accepted contribution and reduced both the basic award and compensatory award by 50%.

On remedy, the tribunal found that the claimant had taken reasonable steps to mitigate loss, including applying for more than 41 jobs and later obtaining employment from 22 August 2019. It assessed her gross weekly pay at £262.39 and calculated a basic award of £1,180.76 before reduction, reduced to £590.38. It assessed the compensatory award at £9,186.29 before reduction, based on 35 weeks' wage loss to 22 August 2019, a wage differential for further loss, £300 for loss of statutory rights, and £210.81 for lost bonus, reduced to £4,593.14. The judgment states the final monetary award as £5,124.52 and records a prescribed element, but the order page and reasons differ slightly on that figure.