Mr Daryl Robertson v Sainsburys Supermarkets Ltd: 4121888/2018
| Judgment Date | 08 November 2019 |
| Subject Matter | Working Time Regulations |
| Date | 08 November 2019 |
| Citation | 4121888/2018 |
| Published date | 14 January 2020 |
| Court | Employment Tribunal |
E.T. Z4 (WR)
EMPLOYMENT TRIBUNALS (SCOTLAND)
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Case No: 4121888/2018
Held in Edinburgh on 29, 30 and 31 October 2019
Employment Judge A Kemp
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Mr Daryl Robertson Claimant
Represented by
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Ms L Neil
Solicitor
Sainsburys Supermarkets Limited Respondent
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Represented by:
Ms A Stobart
Advocate
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JUDGMENT OF THE EMPLOYMENT TRIBUNAL
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The claimant was not unfairly dismissed by the respondent and the Claim is
dismissed
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REASONS
4121888/2018 Page 2
Introduction
1. The claimant pursued a claim of unfair dismissal. It was defended by the
respondent. Dismissal was admitted by the respondent, which argued that it
was for the reason of his conduct. The case called for a Final Hearing.
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2. There had been previous Preliminary Hearings held in the case, when the
claimant was unrepresented and the respondent represented by another
advocate, on 21 December 2018, 25 March 2019 and 27 June 2019.
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3. Ms Neil who had recently been instructed for the claimant confirmed at the
commencement of the hearing that the only claim pursued was for unfair
dismissal, and that there was no dispute that the reason for the dismissal was
conduct. Ms Stobart who had also recently been instructed appeared for the
respondent. I would like to thank both of them for the manner in which they
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conducted the case and their excellent submissions.
4. In the course of the evidence there was reference to an issue that the claimant
had with another member of staff, who was believed to have suffered from
autism, although there was no specific evidence as to that. After discussion
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with the representatives it was agreed that it be appropriate to refer to that
person without disclosing his name. The respondent also raised the issue that
in some of the documents the names of customers and other details were
disclosed, and it was agreed that it was not necessary to refer to those details
in this decision. In light of the agreement I do not consider that any formal order
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is required under Rule 50.
The Issues
5. The issues before the Tribunal were–
1. Was the claimant’s dismissal unfair under section 98(4) of the
Employment Rights Act 1996, and in particular:
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4121888/2018 Page 3
(a) Had the respondent held the belief that there had been
misconduct?
(b) Was that a reasonable belief?
(c) Had there been a reasonable investigation?
(d) Was the penalty in the range of responses open to a reasonable
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employer?
(e) Was the procedure one that a reasonable employer could have
followed?
2. In the event of a finding that the dismissal was unfair, what remedy,
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should be given to the claimant, and in that regard
(a) what loss was caused by the dismissal,
(b) would there have been a fair dismissal by a different procedure
(c) had the claimant contribute to his dismissal, and
(d) if either or both of (b) and (c) applies should any award be
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reduced, if so to what extent.
The Evidence
6. The parties had prepared a bundle of documents. Not all of the documents in
the bundle were spoken to in evidence. There was added to it of consent a
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photograph from a further and better particulars document the claimant had
earlier provided, and two letters in relation to the complaint he had made
regarding another staff member.
7. The Tribunal heard oral evidence from (i) Mr Stuart Hogg, Operations Manager
and (ii) Mr Martin Lowe, Store Manager for the respondent (iii) the claimant
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himself and three witnesses for him (iv) Mr Colin Cramond, an Online Delivery
Driver of the respondent (v) Mr Russell Ireland and (vi) Mr Raymond
Humphries, both trade union representatives and employees of the respondent
8. During cross examination of the claimant he was asked about the address to
which he had gone om 26 January 2018, which was that of his former partner
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