Automated Summary
Key Facts
Ms. N Moncrieffe, a Jamaican-origin employee of Tesco Stores Ltd with an unblemished disciplinary record, was summarily dismissed for alleged gross misconduct related to a physical altercation with a colleague, DS, on the shop floor at Tesco's Croydon Customer Fulfilment Centre on 2 June 2020. The Employment Tribunal found the dismissal was unfair due to a biased investigation by Paula Sheehan, procedural flaws in the disciplinary process, and pre-determination of the outcome by Mr. Joseph, the disciplinary manager. The Tribunal applied a 90% reduction to compensation due to the claimant's contributory conduct in seeking out DS to resolve the dispute.
Issues
- The Tribunal assessed whether the respondent acted reasonably in treating the alleged misconduct as sufficient for dismissal, considering factors such as the size of the employer, administrative resources, and the specific circumstances of the case.
- The Tribunal considered whether the claimant's conduct contributed to her dismissal and whether a Polkey reduction (reduction for the likelihood the dismissal would have been fair in any event) should be applied to the compensation award.
- The Tribunal determined if the respondent established gross misconduct as a fair reason for dismissal, specifically whether the claimant's actions constituted fighting on the shop floor and whether this met the definition of gross misconduct.
Holdings
The Employment Tribunal determined that the claimant was unfairly dismissed by Tesco Stores Ltd, but applied a 90% reduction to compensation due to the claimant's contributory conduct in initiating the altercation. The Tribunal found that the claimant's decision to confront DS without reporting concerns to management was a significant factor in the dismissal, leading to a Polkey reduction of 90%. A remedy hearing is scheduled for 5 July 2021.
Remedies
The Employment Tribunal found the claimant was unfairly dismissed by Tesco Stores Ltd. The Tribunal awarded compensation for unfair dismissal but reduced it by 90% due to the claimant's contributory conduct. A remedy hearing is scheduled for 5 July 2021 to determine the final compensation amount.
Legal Principles
- The employer had the burden to prove a potentially fair reason for dismissal under Section 98(1) of the Employment Rights Act 1996, which it failed to do due to procedural unfairness.
- The tribunal applied Polkey reduction principles to reduce compensation by 90% due to the claimant's contributory fault in causing her own dismissal.
- The tribunal applied the standard of proof of 'balance of probabilities' in determining the facts of the case, including the circumstances leading to the dismissal.
- The tribunal found that the respondent's investigation was biased and failed to provide the claimant with the interview records before the disciplinary hearing, breaching natural justice principles.
Precedent Name
- British Home Stores v Burchell
- Polkey v AE Dayton Services Ltd
- Taylor v OCS Group Ltd
- Software 2000 v Andrews
Cited Statute
Employment Rights Act 1996
Judge Name
Parkin
Passage Text
- Moreover, by the time of the announcement of the decision to dismiss, the respondent shifted from 'fighting on the shop floor with DS' alone to include expressly 'assault/offensive conduct', mirroring the gross misconduct definition within the disciplinary procedure. 'Fighting' as an example of misconduct is not expressly set out within the non-exclusive categories within the disciplinary policy (although the claimant readily accepted in her evidence that she knew fighting would be gross misconduct and could lead to dismissal) whereas assault is expressly included as an example of gross misconduct. The Tribunal drew the inference that the respondent was seeking to make good by a 'belt and braces' process at this late stage the inadequacy or insufficiency of the initial charge of fighting (which, it understood, DS also faced). Although Mr Joseph doggedly refused under cross-examination to accept that he had actually concluded that he had found the claimant struck the first blow and maintained that he only viewed her as the party primarily responsible because she had approached DS, the Tribunal concluded that he had indeed found her to be the aggressor who had struck first. Otherwise, there would have been no need for the addition of the term 'assault' in the dismissal letter. Moreover, Mr Joseph's evidence to the effect that he would not have dismissed the claimant had he found DS had in fact assaulted her would have been difficult to accept or understand.
- 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.
- Finally the Tribunal turned to consider matters of Polkey reduction and contributory fault. Whilst in some cases these would be entirely separate considerations, here the Tribunal concluded that deciding whether, had a fair process been followed, the claimant would have been dismissed in any event and, if so, when and what the percentage chance of that outcome would be, cannot meaningfully be separated from determination of contributory fault since doing so would be likely to penalise the claimant twice. In short, having never reported her concerns to management or raised a grievance, the claimant took it upon herself to go to where DS was working (quite a distance away in the workplace). Even on the most generous basis that she only wished to speak with her to try to resolve matters, she did so accompanied by LM and with DL in the vicinity. She left her own work and workplace without permission and her actions were bound to be seen as provocative by DS and potentially as threatening, not least because she was accompanied. Moreover, there is an abundance of evidence that DS's initial response was to the effect: 'Not this morning'; she did not wish to engage. This was the clearest case of the claimant's own conduct causing or contributing towards her own dismissal. As the respondent's investigator and witnesses at the hearing firmly expressed, the opportunity for the fight to take place on the work floor could not have arisen if the claimant had not taken the matter into her own hands and sought out DS. The Tribunal finds therefore concludes there is a very high degree of likelihood that the claimant would have been dismissed at the same time in any event and applies a Polkey deduction of 90% to the compensatory award.