Morris v Represented by: Mr D Boyd - Friend Tesco Stores Limited — 2019

Alan Morris worked as a warehouse operative at Tesco’s Livingston Distribution Centre from 26 April 2000 until his dismissal on 30 August 2018. The dismissal arose from a July 2018 workplace incident involving a female colleague, AV. After a Protector Line call on 20 August 2018, JM investigated and interviewed AV, other colleagues present, and the claimant. The claimant said he intended to touch AV’s bottom during banter and that his hand went too far; the respondent’s witnesses gave accounts that he reached between her legs from behind and touched her intimate area, with several saying he then sniffed his fingers.

TM conducted the disciplinary hearing on 30 August 2018. He received the witness statements on the day, allowed the claimant’s union representative time to consider them, and then summarily dismissed the claimant for indecent assault. The claimant appealed, raising points about delay, confidentiality, missing evidence, witness collusion, CCTV, and the severity of the sanction. RMe carried out a further appeal investigation, re-interviewed witnesses, and upheld dismissal on 8 October 2018. The claimant then pursued a second appeal, which NP heard on 7 November 2018 and upheld on 16 November 2018.

The tribunal found that the reason for dismissal was the claimant’s conduct and that the respondent had a genuine belief in his misconduct based on reasonable grounds after a reasonable investigation. It accepted the respondent witnesses as credible and found that the differing accounts did not undermine the overall conclusion that the claimant had deliberately reached towards or into AV’s intimate area. The tribunal held that the procedural imperfections identified, including the timing of some witness statements and the non-disclosure of the Protector Line call, did not make the overall process unfair in the circumstances.

Applying section 98(4) ERA 1996 and the range of reasonable responses test, the tribunal concluded that dismissal fell within the band of reasonable responses open to a reasonable employer, including in light of the claimant’s long service and clean record. The unfair dismissal claim was therefore dismissed and no compensation was awarded.