The claimant was employed by the respondent supermarket as a forklift driver/warehouse operative from 1 May 2008 until his dismissal on 18th March 2019.   There were a number of reasons put forward by the respondent after an investigation leading to a dismissal for gross misconduct.  This ranged from the claimant indicating that he had seen a fellow-employee getting changed and seeing her underwear to making of a false report about another colleague.  The content of the false report was that another employee had been working for another supermarket whilst he had been off sick from the respondent.

In the investigation, the claimant agreed that the report had been false and in evidence at the Tribunal he attempted to say that it was an ill-fated attempt at humour.   It was notable that the statements made by the claimant in the investigatory and disciplinary meetings were at odds with one another relating to the allegations.  In the investigatory statement he outlined that he did not see the employee getting changed or her underwear yet in the disciplinary meeting he said that he did.  The Judge outlined that this had an effect on the credibility of the claimant.

The claimant’s case was that his dismissal was unfair because the respondent was operating with a vendetta against him.  He outlined that his line manager who led the investigation was at the forefront in trying to get him.  The Tribunal determined that this was no more than a conspiracy theory.  On the procedural points, the Tribunal found that there had been a proper and full investigation which complied with the three stage test from Burchell v BHS; a genuine belief in the claimant’s guilt and the belief was reasonable.   The Tribunal also noted that there had been no use of the appeal by the claimant in the process so the question of a rehearing and reassessment of the decision was redundant.   For this reason, the Tribunal dismissed the claimant’s claim.

Practical Lessons

This case demonstrates the importance in the consistency of statements when it comes to the credibility that will be given to witnesses.  The claimant’s credibility was questioned with a flip-flopping story that changed at the investigatory stage, the disciplinary stage and at the Tribunal.   This makes it very difficult to assert anything beyond the standard of proof required.  The same could also be seen with the respondent’s witnesses albeit to a lesser extent.  A final point is the failure to use the appeals process within the dismissal procedure can be such that it makes it easier for the respondent at hearing. 
https://www.gov.uk/employment-tribunal-decisions/mr-david-sohling-v-wm-morrison-produce-ltd-3320036-2019