The claimant commenced employment with the respondent in September 2013 initially as a customer assistant moving to service manager at the Hackney store in October 2017. The issue leading to this case arose on 2nd January 2019.  The CCTV footage on that day showed the claimant on the shopfloor. The shop was busy, and she approached her colleague at one of the tills.  It was clear that the claimant was unsteady on her feet and agitated. She was gesticulating forcefully and appeared angry. A number of witnesses on that day stated they could smell alcohol on the claimant.  When the next duty manager arrived, he told the claimant to go home and that she appeared to be drunk. She denied this and she had to be followed with the security officer and a store detective. The claimant became aggressive at some points. The police were called and even after 20 minutes of persuasion to leave they were unsuccessful. She then had to be escorted by the police through the stockroom.

An investigation and disciplinary process was commenced against the claimant. The claimant suggested that certain witness statements had been fabricated and that the store manager was persuading individuals to make statements that she was drunk.   The Tribunal made it clear that in such a serious allegation of fraud the burden is on the claimant to prove it. This was not done. During the investigation, it was put forward that it was an excessive dose of Night Nurse which had led to the claimant acting as she had done.

At the disciplinary meeting, the claimant was summarily dismissed for gross misconduct.  The claimant’s reasoning based upon medication was accepted but that was deemed to be insufficient as it had brought the company into disrepute, and she was responsible for the state she was in. The claimant appealed the decision and was successful. The decision was replaced with a final written warning. This was also with the recommendation that the claimant be relocated to a different store and new start away from the other managers. The claimant later took issue with the recommendation on the basis that the store was closed to the hospital where her mother was. She was offered a role in Bethnal Green, but she rejected it outlining her wish to remain in the current store. Later, she was able to find a relocation which was actually closer to the claimant’s home than the Hackney store.

As the claimant was reinstated the Tribunal dismissed the unfair dismissal claim.  The claimant proceeded with a sex discrimination claim with the suggestion that a different approach was taken with her comparator, a male manager.  She related this to a situation in which a male manager had taken alcohol, albeit at an out-of-work event where the individuals were not wearing uniforms. The issue was that he had been accused of sexual harassment but that was never found against that individual.  This was in essence against the initial decision to dismiss. The Tribunal found that this was insufficient in demonstrating a prima facie case and that difference in treatment and a difference in sex are not in themselves sufficient. There must be ‘something more’ which would mean the burden shifts to the respondent. The Tribunal also noted that even if the burden had shifted the respondent had shown an adequate, non-discriminatory reason for the dismissal that being the genuine belief that gross misconduct had been committed.

Practical Lessons

This case demonstrates a respondent that seemed to take a fairly light touch when it came to the disciplinary processes being put in place with the decision to dismiss being successfully internally appealed. The continuation of the proceedings in this case seemed fairly forlorn and the respondent had reacted well at every stage of the process. A very useful learning point is that there must be ‘something more’ to discharge the burden when it comes to discrimination cases. The idea that there is a different decision and there happens to be a different characteristic will not be sufficient to discharge that burden.
https://www.gov.uk/employment-tribunal-decisions/miss-z-alia-v-tesco-plc-3202089-slash-2019