The claimant said that he had been unfairly dismissed by the respondent. The respondent denied the allegations in their entirety. In doing so, the respondent relied on gross misconduct and, in the alternative, some other substantial reason (loss of trust and confidence), as grounds for the claimant’s dismissal. The claimant was employed as a replenishment manager and it was alleged that he was involved in a theft from the store which amounted to a fundamental breach of his contractual terms which irrevocably destroyed the trust and confidence necessary to continue the employment relationship.

The principle issue analysed by the tribunal was whether the respondent had a ‘reasonable suspicion’ amounting to the belief in the guilt of the employee of the misconduct at the time of its decision to dismiss as laid down in the case of British Homes Stores v Burchell [1980] ICR 303. 

However, the tribunal also highlighted the failings of the appeal process and noted the fact that the appeal outcome letter stated “gross misconduct leaves no room for a lesser sanction” which suggested that the appeal was of no consequence.

Practical lessons

The tribunal methodically went through Patrick Joseph Rogan v South Eastern Health and Social Care Trust 2009 NICA 47 in coming to its conclusion that the claimant was unfairly dismissed. Put simply, the Tribunal held that the actions of the respondent were disproportionate and not enough weight was given to the explanations and mitigating points adduced by the claimant. For employers, when dealing with a dismissal based on gross misconduct paragraph 15 of Rogan is an extremely useful guide on how a Tribunal will analyse an employer’s conduct in such circumstances.