Mr Daryl Robertson v Represented by Ms L Neil Solicitor Sainsburys Supermarkets Limited — 2019

The claimant, Mr Daryl Robertson, was employed by Sainsbury’s Supermarkets Limited as an Online Delivery Driver from 15 February 2007. The only live claim at the final hearing was unfair dismissal. The tribunal recorded that he had signed the respondent’s Online Driver’s Responsibilities document in October 2017 and had received a final written warning on 5 December 2017. On 18 January 2018 and 26 January 2018 he drove the delivery van to the home address of his former partner during his shift, and the respondent’s investigation was triggered after tracking data showed the vehicle at that address. Mr Hogg dismissed him on 13 August 2018, and Mr Lowe upheld the dismissal on appeal on 9 November 2018.

The tribunal accepted the respondent’s evidence and found that the claimant had admitted he could have used his own car on 26 January 2018 but chose the van so that he would remain on shift and be paid. It rejected later parts of his evidence as inconsistent and unreliable, including his changing account of where he was when he received the call from his mother, whether he contacted the store or department, and whether he told another employee or manager. On that basis, the tribunal held that the respondent had an honest and reasonable belief that misconduct had occurred, and that the investigation was reasonable in the circumstances.

On penalty, the tribunal held that dismissal was within the range of reasonable responses, especially because the claimant was already under a live final written warning and had not sought approval before or after the lengthy absence from work. The tribunal noted that the concern about his son did not justify using the van rather than his own car, and that the absence was far longer than the short home breaks referred to by other drivers. The appeal was found to have been conducted fairly, and the judge said that any procedural defect would in any event have been cured on appeal. If unfair dismissal had been found, the tribunal said it would have reduced any basic and compensatory awards to nil because the claimant had contributed to the dismissal. The claim was dismissed and no award was made.