Mr David Milne v Represented by: R Russell Solicitor Sky Retail Stores Limited — 2021

Mr David Milne brought a single unfair dismissal claim after Sky Retail Stores Ltd summarily dismissed him on 4 June 2020 for conduct. The employer relied on four allegations: unauthorised absence on six dates, an overtime overclaim on 17 December 2019, unauthorised access to a customer account on 31 January 2020, and foul and abusive language to Debbie Masson. The tribunal accepted that Adam Wickson, the dismissing officer, and David Holmes, the appeal officer, genuinely believed the claimant was guilty, so the first limb of the Burchell test was satisfied.

The tribunal held, however, that the investigation and dismissal decision were not reasonable under section 98(4) ERA 1996. On allegation 1, the tribunal found it was not open to a reasonable employer to treat the claimant's refusal to consent to release of CCTV footage as evidence against him once his right to refuse had been accepted. On allegation 2, Mr Wickson relied on supposed 'touch points' to infer dishonesty without putting those points to the claimant. On allegation 4, the tribunal held that no reasonable employer could conclude the specific abusive words were used on the basis that 'something was said', and it criticised the failure to investigate the claimant's grievance against Ms Masson and the failure to ask Mr Paterson, who was present, what he heard.

The tribunal accepted allegation 3 as reasonably founded because the claimant admitted accessing the customer account and the tribunal accepted the employer's reading of the 'How We Work' guidance. Even so, it held that no reasonable employer would have upheld three of the four allegations or dismissed the claimant on that basis. It also found that sanction was decided without proper regard to mitigation, length of service, or the claimant's mental health, and it rejected the evidence that those matters had been considered. On remedy, the claimant was 34 years old, had 11 years' service, and had a gross weekly wage of £576.92. The tribunal found a basic award of £5,918.00 before reduction and a compensatory award of £26,817.05 before reduction, made no Polkey reduction, and reduced both awards by 25% for contributory conduct, producing awards of £4,438.50 and £20,112.79 and a total award of £24,551.21.