Mr Scott Gibson v ’s father) ASDA Stores Limited — 2021

The tribunal issued a reserved judgment after a 5-day hearing in November 2020 and later refused the claimant's applications for reconsideration. It held that there was no reasonable prospect of the original decision being varied or revoked, because the points raised were attempts to re-open factual issues that had already been heard and determined. The tribunal relied on the interests of finality and the rule 72(1) preliminary consideration test, and it also noted that no new evidence or missed matter had been identified.

On unfair dismissal, the tribunal found the dismissal unfair because of the investigation that led to it. It accepted that the claimant had sat in his car for 30 minutes when he should have been working, that he knew this was wrong, and that the conduct was blameworthy and potentially gross misconduct. Applying Polkey and the statutory reduction provisions in sections 122(2) and 123(6) of the Employment Rights Act 1996, the tribunal held that there was a 75% chance the claimant would have been fairly dismissed even if a fair procedure had been followed. It therefore reduced the basic and compensatory awards by 75% for contributory conduct, and reduced compensation by a further 10% because the claimant unreasonably failed to pursue the appeal.

On disability discrimination, the tribunal dismissed the claim because it was not satisfied that the respondent knew, or ought reasonably to have known, that the claimant was disabled at the relevant times. It found that the claimant had not disclosed further information about his impairments to the respondent, that the information held by the respondent was limited, and that the witnesses' evidence about their experience of working with him was credible. The tribunal also said that later medical material and the fact that the claimant received disability-related benefits did not alter the assessment of what the respondent knew at the time.

The reconsideration reasons also reject the claimant's father's arguments that the tribunal ignored the claimant's disability, that the investigation was wholly the respondent's responsibility, or that the stated reason for dismissal changed. The tribunal said those points had already been considered at the hearing and did not justify reopening the case.