Mrs T Bradley v Alpha Care Management Services Limited — 2020

Mrs T Bradley worked as an Assistant Cook at Carnbroe Care Home and was dismissed on 13 March 2019 after allegations that, on Christmas Eve 2018, she had cooked and sold steak pies and a trifle for staff, used staff assistance, failed to notify management of shortages, sold food without permission, extended her working day, and used meat from a source not approved by the respondent. The tribunal found that the respondent believed she had committed gross misconduct, and that the dismissal was for conduct within the meaning of section 98 of the Employment Rights Act 1996.

Applying British Homes Stores v Burchell and the band of reasonable responses approach, the tribunal held that the respondent had reasonable grounds for its belief and had carried out as much investigation as was reasonable in the circumstances. It accepted evidence that nine members of staff were interviewed and that the claimant herself was interviewed twice, giving her ample opportunity to explain her position. The tribunal found the dismissal decision reasonable and rejected the claimant's arguments that the investigation was unfair, that additional allegations on appeal required a fresh process, or that any third party improperly influenced the decision-makers.

The tribunal also rejected the claimant's mitigation arguments, including her reliance on the limited amount of food prepared, her stated good faith, the approval status of the butcher under Food Standards Scotland, and her short service of about 25 months. It found that making the food on Christmas Eve during working hours and introducing meat from a non-approved source were both capable of amounting to gross misconduct under the respondent's policy, and that the appeal process did not render the dismissal unfair. The separate unlawful deduction from wages claim was dismissed as time barred. The judgment separately records that the parties had resolved an issue concerning holiday pay and unpaid shifts on the basis that the respondent accepted £323.75 gross was owed and would pay it without an order, but no tribunal remedy was awarded in this liability judgment.