‘M’ v Respondent — 2025

The tribunal first dealt with a preliminary issue under section 111A ERA 1996. It held that references to pre-termination negotiations were inadmissible and said it had taken no account of them when deciding the unfair dismissal claim. It also granted an anonymity order because the evidence included sensitive material about a referral to social services concerning a witness’s family circumstances.

The only claim before the tribunal was unfair dismissal. The respondent said the reason for dismissal was misconduct, namely that the claimant had allegedly consumed edible cannabis before work on 25 September 2023 and 14 October 2023, and had attended work under the influence. The tribunal accepted that misconduct was the reason relied on by the respondent, so section 98 ERA 1996 was engaged.

Applying the Burchell/Foley approach and the range of reasonable responses test, the tribunal held that the dismissal process was not fair. It found that the investigation was not sufficiently rigorous because, once the CCTV point was discounted at the disciplinary stage, the case depended entirely on the uncorroborated account of Witness A. The claimant had consistently denied the allegations and had raised counter-allegations that Witness A was involved in unlawful tobacco re-selling from the shop, which went to Witness A’s credibility.

The tribunal found that the respondent did not carry out any meaningful investigation into those counter-allegations before relying on Witness A as a truthful and reliable witness. In those circumstances, it held that no reasonable employer could have concluded that the misconduct allegation was proved on the material before it. Although the tribunal said that dismissal would have been within the range of reasonable responses if the findings had been properly and reasonably made, it concluded that the actual dismissal was unfair. It also rejected any Polkey reduction and found no contributory fault because the respondent had not proved, on the balance of probabilities, that the claimant committed the misconduct alleged.