Matthew Danes v Represented by: J Grant Solicitor Wm Morrison Supermarkets plc — 2022

Matthew Danes brought a single unfair dismissal claim against Wm Morrison Supermarkets plc after his dismissal following the Christmas Day 2020 working arrangement at the Dalkeith store. The respondent relied on conduct, alleging serious disregard of health and safety precautions and a serious breach of a statutory or regulatory requirement. The tribunal set out the background of the respondent's 'Castle' restructuring, the manager-in-charge training materials issued in 2020, and the claimant's shielding absence before he returned to work in late August 2020.

The tribunal accepted that the claimant allowed four level 1 colleagues to work in the store on 25 December 2020 between 06:00 and 18:00 without a Manager in Charge present. It also accepted that the respondent later treated this as gross misconduct and that the claimant had not followed company policy. However, it found that the respondent did not have a reasonable basis for concluding that he had knowingly breached a rule requiring an MIC to be present whenever anyone was working in store, whether or not the store was trading. The judgment noted that the training materials did not specify such a rule, and rejected the respondent's reliance on an alleged admission that the colleagues were untrained and on alleged concerns said to have been raised by the claimant's managers.

Applying section 98(4) of the Employment Rights Act 1996 and the Burchell approach, the tribunal held that the second stage of Burchell was not met. It found that the respondent lacked a reasonable basis to conclude that the claimant was guilty of the misconduct alleged, and therefore held that the dismissal was unfair. The tribunal also referred to the ACAS Code of Practice on Disciplinary and Grievance Procedures (2015) in noting the importance of warning employees what conduct may lead to summary dismissal.

On remedy, the tribunal found a basic award of £2,152.00 before reduction and a compensatory loss figure of £70,119.71 before deductions. It reduced both awards by 50% for contributory fault, reasoning that the claimant had failed to acquaint himself with the changed expectations and had not properly taken account of the concerns raised by Ms Wilkinson and Mr Halliday. That produced a basic award of £1,076.00 and a compensatory award of £35,059.85. The tribunal made no Polkey reduction, then grossed the award up to £36,593.81, with a prescribed element of £17,195.00 covering 25 February 2021 to 21 December 2021.