Ms N Moncrieffe v Tesco Stores Ltd: 2305161/2020
| Judgment Date | 29 May 2021 |
| Citation | 2305161/2020 |
| Published date | 10 June 2021 |
| Court | Employment Tribunal |
| Subject Matter | Unfair Dismissal |
Case No. 2305161/2020
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EMPLOYMENT TRIBUNALS
Claimant:
Ms N Moncrieffe
Respondent:
Tesco Stores Ltd
Heard at: Croydon (by video hearing) On: 14 April and 6 May 2021
Before: Employment Judge Parkin
Appearances
For the claimant: Mr T Lester, Counsel
For the respondent: Ms L Gould, Counsel
RESERVED JUDGMENT
The judgment of the Tribunal is that:
1) The claimant’s claim is well-founded; she was unfairly dismissed by the
respondent;
2) Compensation for unfair dismissal is to be reduced by a percentage of
90%; and
3) A remedy hearing, if required, is listed by remote video hearing on 5 July
2021, commencing at 10:00 am.
REASONS
1. The claim and response
By a claim form presented on 16 September 2020, the claimant claimed unfair
dismissal from her position as a Picker with the respondent at its Croydon Customer
Fulfilment Centre on 19 June 2020. In extensive narrative details of her claim, she
criticised the adequacy, fairness and independence of the respondent's investigation,
the conclusions drawn and the procedure adopted by and independence and
approach of the disciplinary manager and maintained that she was dismissed for a
different charge from that first laid against her. Notwithstanding some references to
discrimination and an express citation of the out of time provisions in the Equality Act
2010, there was no discrimination claim under that Act presented although the
claimant expressly referred to her own nationality and ethnicity as British Jamaican
and that of the work colleague she was involved with, DS, as Jamaican.
Case No. 2305161/2020
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2. In its response presented on 3 November 2020, the respondent admitted
summarily dismissing the claimant on 19 June 2020. It said this was because of her
gross misconduct in fighting with DS on the shop floor, and it had carried out as
much investigation as was reasonable in all the circumstances, followed a
reasonable procedure and formed a genuine and sustainable belief on reasonable
grounds that she was guilty of misconduct; therefore, the sanction of dismissal was
fair and reasonable. Alternatively, if the dismissal was unfair, it contended the
claimant would have been dismissed in any event and/or that she caused or
contributed towards her own dismissal.
3 The Issues
The liability issues were discussed at the start of the hearing and were as follows:
3.1 Has the respondent proved a potentially fair reason or principal reason for
dismissing the claimant, within section 98(1) and (2) of the Employment
Rights Act 1996. The respondent relies upon a reason relating to the conduct
of the claimant, contending it summarily dismissed her for gross misconduct
on 19 June 2020.
3.2 If so, applying section 98(4) ERA 1996, with no burden of proof on either
side, the decision whether the dismissal was fair or unfair (having regard to
that reason), depends on whether in the circumstances including the size and
administrative resources of the respondent it acted reasonably or
unreasonably in treating that as a sufficient reason for dismissing the
employee, having regard to equity and the substantial merits of the case.
As to reasonableness, the claimant pointed in detail to procedural failings in
the conduct of the investigation and disciplinary process such that the
respondent failed to establish a fair and balanced view of the facts relating to
the allegations against her, contending the investigation, disciplinary manager
and note-taker were not independent but biased, that the disciplinary manager
based his conclusions upon summaries which were inconsistent with the
investigation notes and evidence before the disciplinary hearing and ignored
evidence which could help the claimant or used it against her, failed to follow
its own disciplinary policy and procedure and failed to provide a fair workplace
appeal. The respondent contended that its decision to dismiss the claim was
reasonable following a reasonable investigation and a fair procedure and was
a reasonable sanction in all the circumstances; it was within the band of
reasonable responses open to a reasonable employer.
3.3 The Tribunal agreed that it would hear submissions on and give judgment
on contributory conduct and Polkey issues as part of the initial liability stage.
4. The hearing
The case was listed for hearing on 6 September 2021 but then brought forward to 14
April 2021 and held by CVP video hearing. In the event only the respondent's
evidence could be concluded that day and evidence and speeches were completed
on 6 May 2021 with judgment reserved. The respondent called its Croydon CFC
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