Mr Robert Hayes v Represented by Self Co-operative Group Limited — 2022

Mr Robert Hayes was employed by Co-operative Group Limited as a warehouse operative from 19 November 2018 until his dismissal on 2 June 2021. The respondent investigated an incident on 26 April 2021 in which the claimant said he had been struck by ice falling from the chamber ceiling. After drug and alcohol testing, interviews with the claimant, Mr Boyd and other operatives, and review of Manhattan warehouse management system data, the respondent concluded on the balance of probabilities that the claimant and Mr Boyd had fabricated the account of the incident. Mr Smith dismissed the claimant for gross misconduct, and that decision was upheld on appeal by Mr Baird and again by Mr Cole.

The tribunal found that the reason for dismissal was conduct and applied the approach in British Home Stores Ltd v Burchell, together with the general band of reasonable responses analysis. It held that the decision-makers genuinely believed the claimant was guilty of misconduct, that there were reasonable grounds for that belief, and that the investigation was reasonable in the circumstances. The tribunal accepted that the Manhattan system was not a perfect tracking tool, but found that the respondent was entitled to rely on it alongside the other evidence, including the lack of corroborating witnesses and the timing of Mr Boyd's photograph.

The tribunal also rejected the claimant's criticisms that the investigation was too slow, that witnesses were improperly led, and that the involvement of Ms Erenc created unfairness. It found that the appeal stages independently revisited the evidence and that dismissal fell within the band of reasonable responses, even if it was towards the higher end of that range. The unfair dismissal claim was therefore dismissed. As the claim failed, the tribunal did not need to determine compensation issues further; it recorded that contributory conduct, Polkey, mitigation and other remedy matters did not need to be addressed, although it noted the claimant had obtained new work quickly and had suffered no ongoing financial loss after 11 July 2021.