Employment Judge HarfieldMr Zaman (instructed by Counsel) for respondentDate 8 August 2025
JUDGMENT
It is the decision of the
REASONS
[1]Introduction1.1 The Claimant worked for the Respondent from 23 July 2002 until his dismissal on 16 February 2024, ostensibly for gross misconduct. The ET1 claim form was presented on 3 July 2024. Early conciliation took place between 13 May 2024 and 12 June 2024. The claim is one of unfair dismissal.1.2 I had before me a bundle of witness statements and a hearing bundle of 334 pages. Page references to the main bundle are in brackets “[ ]”. I also had a Claimant bundle which, after discussion, was admitted at the start of the hearing with the Respondent’s consent. Page references to that bundle are “[SB ]”. I saw the CCTV evidence. At the start of the hearing I heard the Claimant’s application to strike out the Respondent’s ET3 Response. The application was refused. Oral reasons were given at the time and any request for written reasons must be made within 14 days. In essence the Claimant was attempting to use a strike out application as a mini trial of the case which was not appropriate; the case needed to be, and could be, fairly heard on its merits.1.3 At the initial hearing one of the Respondent’s witnesses, Keri Blanchard [KB], was not able to attend due to a family emergency. The Respondent raised the potential of continuing without her evidence, but it was also evident that the Claimant was very keen to cross examine KB and I therefore decided it was in the interests of justice to reconvene on a future date. The Claimant wanted the whole case postponed because he wanted the Respondent’s witnesses to be heard in order with the investigating manager [KB] first. I refused that request because it was not an efficient use of the tribunal or the parties’ time and resources given the Respondent’s other witnesses were available. I explained that it is also often the case that witnesses are heard out of order and it was also the Respondent’s choice what order to call their witnesses in. On the original dates I therefore heard from the two Respondent witnesses that were available. On the reconvened dates I then heard evidence from Ms Blanchard and the Claimant. I heard oral closing comments. Judgment was reserved. I apologise for the delay in delivering this Judgment which was caused by the pressure of other judicial work.[2]Unfair Dismissal - The legal framework2.1 Under section 98 of the Employment Rights Act [ERA] it is for the employer to show the reason or principal reason for dismissal and that it is either reason falling within subsection 2 or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position the employee held. Subsection 2 includes a reason relating to the conduct of the employee. Under section 98(4) where a potentially fair reason has been shown, the determination of the question of whether the dismissal is fair or unfair, having regard to the reason shown by the employer,(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking), the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and(b) shall be determined in accordance with the equity and substantial merits of the case.2.2 In considering whether or not the employer has made out a reason related to conduct, the tribunal must have regard to the test set out in the seminal case of British Home Stores v Burchell [1980] ICR 303. In particular, the employer must show that they genuinely believed that the employee was guilty of the conduct. Further, the tribunal must assess (the burden here being neutral) whether the respondent had reasonable grounds on which to sustain that belief, and whether at the stage when the respondent formed that belief on those grounds, it had carried out as much investigation into the matter as was reasonable in all the circumstances.2.3 Other key case law in the field has also established that:• In judging the reasonableness of the employer's conduct, the tribunal must not substitute its own decision as to what was the right course to adopt for that of the employer. In many cases the function of the tribunal is to determine whether, in the particular circumstances of each case, the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted (Iceland Frozen Foods v Jones [1982] IRLR 439);• The band of reasonable responses test also applies to the investigation. If the investigation was one that was open to a reasonable employer acting reasonably, that will suffice (Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23);• As part of the investigation an employer must consider any defences advanced by an employee but there is no fundamental obligation to investigate each line of defence. Whether it is necessary for an employer to carry out a specific line of enquiry will depend on the circumstances as a whole and the investigation must be looked at as a whole when assessing the question of reasonableness (Shrestha v Genesis Housing Association Ltd [2015] IRLR 399);• The band of reasonable responses analysis also applies to the assessment of any other procedural or substantive aspects of the decision to dismiss an employee for a conduct reason;• Where there is a procedural defect, the question that always remains to be answered is did the employer’s procedure constitute a fair process? A dismissal may be rendered unfair where there is a defect of such seriousness that the procedure itself was unfair or where the results of defects taken overall were unfair (Fuller v Lloyds Bank plc [1991] IRLR 336);• Procedural defects in the initial stages of a disciplinary process may also be remedied on appeal provided that in all the circumstances the later stages of the process (including potentially at appeal stage) are sufficient to cure any deficiencies at the earlier stage (Taylor v OCS Group Ltd [2006] EWCA Civ 702);• Any procedural defects do not exist in a vacuum. Not every procedural error renders a dismissal unfair. Ultimately the fairness of the process as a whole must be looked at, alongside the other relevant factors, focusing always on the statutory test as to whether, in all the circumstances, the employer acted reasonably or unreasonably in treating the reason for dismissal as a sufficient reason for dismissing the employee (Taylor v OCS Group Ltd [2006] EWCA Civ 702);• On sanction: If there is a finding of gross misconduct – then key questions are was the employer acting within the band of reasonable responses in choosing to categorise the misconduct as gross misconduct; and was the employer acting within the band of reasonable responses in deciding that the appropriate sanction for that gross misconduct was dismissal.[3]Findings of Fact3.1 At the time of the events in question the Claimant was a Bar Shift Leader at the Respondent’s Pontlottyn pub. During his long career with the Respondent the Claimant had worked in various locations and also worked his way up to being a Shift Leader. This meant he could act as duty manager in the pub.3.2 On 3 December 2024 a Standard Operating Procedure [SOP] was issued about processing voids, refunds and discounts [51-52]. Step 7 referred to free employee food and drink saying a free meal (one item from the menu) and one free soft drink are available to all employees when working a shift. It said that employees wishing to add extra items, side orders or snacks can purchase these separately using the 50% discount function. The free meal and drink had to be processed using the till key of the employee who is going to consume it, and if they do not have one (such as kitchen staff), they must be set up as a user and a manager must then select the employee on the till and process it in the employee’s name. Step 8 was concerned with discounts. It said the 50% discount was available to all employees on duty and can be used multiple times during, or immediately before or after the shift. But it could only be used for products that were going to be consumed in the pub by the employee. All 50% transactions had to be approved by a shift leader or above. It had to be processed using the till key of the employee or again, if they did not have one, then by a manager against the employee’s name. The 20% discount is available to all employees off duty and there are far fewer limits on its use. Step 11 says that employees must not give their till key to any other employees to process discounts, employee food or drink or any other reason. It says that the pub manager must investigate instances when any of the above procedures have not been followed.3.3 A managers meeting took place on 4 December 2023 where the SOP was raised. On 5 December 2023 the pub manager, Sarah Newton [SN] sent a message in the pub employee chat saying the policy had been updated for 50% off and was being enforced. She said that they were not allowed to take the 50% meal home, and it must be consumed at the pub. There were various exchanges in the chat about the policy and SN went on to say that if staff wanted to take food home then it had to go through on 20%. SN said the Company was cracking down on it because some people in other pubs had taken multiple 50% orders home; that was why the discount had to be in the employee’s name; the Company had IntelliQ; use of the discount had been investigated and could lead to disciplinary. KB added that staff had to be careful and there had been many jobs lost in the past and were still being lost [CB23] On 6 December 2023 SN clarified that Ceri Gough (in the auditing team) had said that the free staff meal could be a takeaway but the 50% discount food had to be consumed in the pub. On 9 January 2024 the Claimant asked SN to clarify if it was the case that staff feeding and 50% discounted food could not be taken home. SN explained that staff feeding could be taken home. The Claimant said he had made a mistake with Noah Gardiner [NG], a kitchen associate, the night before because NG was taking food home and the Claimant had told NG that both staff feeding and 50% discounted food could not be taken home and had to be consumed on site [16]. The Claimant said he would right the wrong and tell Noah Gardiner he had made a mistake about the free staff food. The Respondent’s witnesses explained to me that originally there had been the 50% discount, but due to difficulties with staff retention, the daily free staff meal had been introduced with the 50% discount also retained. The 50% discount could, for example, aid staff working very long shifts who may eat more than once. It was said that the differing policies had, however, led to a lot of confusion. There had also been a crack down on the 50% discount because staff had been caught taking food home to feed their whole family. The cost of the staff discounts, across the board, to the Respondent is a significant one. The Respondent’s witnesses spoke of a corporate zero tolerance attitude towards abuse of the staff discount policies.3.4 The Respondent has an information system called IntelliQ that flags potential instances of potential staff fraud, loss, or failure of procedural compliance. On 7 February 2024 IntelliQ flagged that the pub had been highlighted as having a number of transactions over and outside the average of the business [90]. The IntelliQ report covering email referred to the on duty discount and said there should be an investigation to review the data and verify if they are genuine transactions. It said that the discount only applied to items that could reasonably be consumed by that employee on that shift and does not apply to purchases of multiple items to take away. It cannot be used to purchase items for other employees, friends or family, including during breaks. Side orders and additions, such as an extra burger are included but only as an addition to a meal. Food and drink must be rung through the till and paid for before consumption. There was an attached IntelliQ excel spreadsheet. Whilst this was disputed by the Claimant, I accept and find as a matter of fact that the transactions in that spreadsheet only related to the transactions he authorised on 31 January 2024. These were in particular, on 31 January 2024, the Claimant processed two portions of halloumi fries, two portion of chicken breast bites, and two cans of Monster drink for NG, and had applied a 50% on shift staff discount. The Claimant suggests that the IntelliQ report in question would also have identified other misuse of the discount policies, and the misuse of SN’s till key by other members of staff. However, in cross examination KB explained that the IntelliQ (which she had first hand knowledge of as she did the investigation) only contained the entries in question that the Claimant had authorised for NG. KB explained where the printout out of those entries was in the bundle [82-85]. KB also explained how the transactions undertaken by others which the Claimant says would have been in breach of the discount/staff feeding policy, were in fact not in breach. KB’s explanations were thoughtful and made sense and I accept her explanations. Further, again as explained by KB, IntelliQ would not flag up other staff using SN’s till key because as a computerised system it would not have known it was not SN using her own till key.3.5 The IntelliQ report came from the audit team and was emailed to SN but at this point in time she was managing a different pub. The Claimant sees the gap in time between 31 January 2024 and 7 February 2024 as suspicious, but I am satisfied that it is explained by the delay in the system analysing the data and producing the report and it being sent on. On 7 February 2024 SN sent a team message to the pub staff saying: “Guys we have had another intelliq come through for the pub please please watch what you are doing. Im awaiting details but again its about the 50% discount.” The Claimant looked at that day’s transactions and replied to SN. SN then clarified that it was not for that day (7th February) and “but guys you cant put through 4 things on 50%.” The Claimant replied to say he did not realise and could he re-open the account and put it through properly. SN said there was a 50% discount for 10 extra bites and 2 cans and “guys you have been told to ring it through separately.” She asked the Claimant to phone her [18]. There was then a private message exchange between SN and the Claimant. SN said to speak to her or KB and the Claimant said he would speak to KB “but lets just say I’m very pissed off with myself!!!.” SN said that mistakes happen but they had to be careful because the company really were cracking down on it. The Claimant agreed that mistakes did happen and he was disappointed he had made one. He had been back and looked at the discount reports for the day and notified SN that her till key had been used to authorise a few staff feeding meals that day, which had included one for NG. SN said she had to leave her key there a day when she went home due to an eye injury. The Claimant said to SN he did not know why NG and Lewis Osland (the bar team leader on shift at the time) had not asked him to put through their staff feeding instead of using SN’s key.3.6 On the evening of 7 February 2024 KB was asked to deal with the investigation in SN’s absence. KB spoke with Ceri Gough the retail auditor by telephone and he set up a system for KB to access the IntelliQ report. KB otherwise could not access it because it had only been sent to SN’s pub manager email address. Once KB had it both her and SN saw the same IntelliQ report. On 8 February KB messaged the Claimant asking if NG had taken home the 50% discounted food or had eaten it in the pub. I do not know if the Claimant responded or what the response was (if he did).3.7 KB viewed the CCTV footage. It showed SN’s till key being used for an initial transaction by NG. NG seemingly being directed to the till key by LO and with LO standing behind the NG when he put the initial free staff food through the till. SN was not on the premises and her till key should not have been used by other staff. SN’s till key had been used at 20:02 to process as free staff feeding for NG, chicken breast bites and a can of Monster Punch drink [86]. Two minutes later the Claimant processed the 50% discount for NG for the further two portions of chicken breast bites, the haloumi fries and two further cans of Monster drink. The Claimant was not at the till when NG and LO processed the earlier free staff feeding.3.8 KB met with NG on 12 February 2024 [94-95] and asked him why he had used SN’s till key to put through the first transaction. NG said he did not remember and so he was shown the CCTV footage and the transaction report. The Claimant disputes that NG was shown the CCTV. I find that NG was shown the CCTV. It is recorded on the interview notes and KB confirmed in evidence that it had been shown. NG then told KB he asked LO to put through the transaction, LO had said he could not and had pointed at a key hanging up and said to use it. NG was asked if he processed the food himself and said he did. NG was asked if he ate the food on site and he said “I should’ve yeah, I don’t take food home any more.”3.9 NG was then told that 2 minutes later the Claimant had put through two haloumi fries, 2 breast bites and 2 Monster drinks on 50% and NG was asked if he knew the policy for 50%. NG said he knew it was half an hour before and after. He was asked if he had asked for the 50% discount and NG said: “I just asked for someone to put it though.” He was asked if he took that food home and said that he did and that he had told the Claimant and Sarah Stewart [SS] (the kitchen team leader) that he was taking the food home. He said he did not ask for at 50%, he had just asked for it to be put through the till. He was asked if he had cooked the food himself, and said that he had but that he had asked SS to get it ready so he could cook it and leave. KB also asked him if he had wrapped it in foil (because she had seen that on the CCTV and wanted to assess his credibility) and he confirmed that he had as there were no takeaway boxes at the time. He confirmed he was working a 3pm to 9pm shift that day. He said he had his break about 6pm. KB asked him why he had processed the food at 8:02pm, and he said that he could not remember. KB told NG that all food needed to go through the till before it was cooked, and that other people’s till keys should never be used, especially managers.3.10 KB then met with the Claimant on 12 February 2024. Shanelle Craze, a shift manager, was there as notetaker and witness. The Claimant was asked why he had put through the two lots of halloumi fries, breast bites and Monster drink on 50% discount. The Claimant told KB that the day was a blank in his mind and he did not have any recollection of the transaction happening. Again, there is a dispute as to whether KB showed the Claimant the CCTV footage. The minutes, signed by the Claimant, say: “Keri shows cctv and transaction report.” The next question then starts with “looking at the cctv…” On the balance of probabilities I am satisfied that KB did show the Claimant the CCTV, taking account of her evidence and also the contemporaneous documents. The Claimant was also shown the transaction report. KB asked the Claimant if he knew the discount policy and he said he had previously spoken to staff about this to explain that 50% discounted items could not taken home, but staff feeding meals could be. He said there had been a conversation in the management chat about this. He said that since the 31 January 2024 incident he had reviewed the policy and relevant Standard Operating Procedures again.3.11 KB asked the Claimant if he was aware NG was taking the food home. The Claimant said he would have imagined that he would have said something to NG if the Claimant had known, and would have given NG the 20% discount instead of the 50% discount.3.12 KB told the Claimant that he should not have authorised four food items and two drink items on one ticket, and regardless the discount should have been 20%. The Claimant said they had talked about putting staff 50% discount through individually. KB said that was why it was flagged up on IntelliQ. KB asked the Claimant if he knew about NG using SN’s till key to process his own food, and the Claimant said he was not aware and spoke to SN after it happened. The Claimant said he did not know why NG had not asked him to put the first order through. The Claimant said he always stopped the staff from giving out or sharing keys.3.13 KB told the Claimant that she understood he was saying he would not have put the items through on 50% if he had known that NG was taking the food home, but that leaving that part out the 50% discount should only be used as an addition to a main meal or snack so only one food product should be processed. She asked why he had used a 50% discount on 4 items. The Claimant said he felt like he may have made a mistake in error and could have pressed the wrong button. He said that normally if someone asked him for a large quantity of food he would have declined the 50% discount, and also declined it if he knew the food was being taken home.3.14 KB then adjourned the investigation to try to speak to the area manager or HR but could not get hold of anyone. Suspensions have to be authorised by an area manager. She therefore told the Claimant to continue with his shift, and she would speak to them the next morning. She told the Claimant it was possible there may be a disciplinary hearing as misuse of an employee discount was a gross misconduct offence. KB knew at the time it was a matter taken seriously by the Respondent (and indeed her earlier message in the group chat shows this).3.15 KB’s decision was that there was a case to answer that should proceed to a disciplinary hearing. She considered that the Claimant had put through a transaction that was outside Company Policy, that she considered could be gross misconduct. When she spoke to the stand in area manager, she was authorised to suspend the Claimant pending a disciplinary hearing and did so on 13 February. KB also reported her findings back by telephone to CG, in effect reading out to him the investigation interview content. The Claimant was suspended on full pay. The letter of suspension said the suspension was pending further investigations into the allegations relating to misuse of the 50% discount [102]. The Claimant was also given a letter inviting him to a disciplinary hearing on 16 February [104]. Chris Jenkins [CJ], a pub manager in a different pub was to be the disciplinary chair and Rachel Stanley (again another pub manager) was to be the note taker. The allegation was said to be that on Wednesday 31 January 2024 the Claimant had processed two portions of halloumi fries, two portion of breast bites, and two cans of Monster for NG applying the 50% on shift discount. It was alleged this was not in line with company policies and procedures.3.16 The Claimant was told in the letter that the actions, if proven, could amount to: abuse of the employee discount policy or complimentary food at work policy; conduct resulting in a fundamental breakdown in trust and confidence - intentional behaviour which involves a serious breach of policies or procedure; gross incompetence or gross negligence in carrying out duties; under-ringing tills, including deliberately undercharging for products; and any act of dishonesty in the course of duties. The letter said if the allegation was proven it was considered gross misconduct which may result in a sanction of up to and including dismissal. The Claimant was sent a pack of documents to be referred to at the hearing. He was told of his right to be accompanied. The letter said that the Claimant could view the CCTV on site accompanied by a manager. He was referred to the Employee Discount Policy and the Standard Operating Procedure on processing voids, refunds and discounts.3.17 On the day of the disciplinary hearing on 16 February 2024 CJ told the Claimant that RS was not available to attend due to the serious illness of a close friend of RS, and Gareth Davies would take the notes instead.3.18 The minutes of the disciplinary hearing start at [107]. The Claimant again said he had no real recollection of the day, that NG came to him about putting the food through, that the Claimant did not really think until after that there should only have been one drink and food item for 50%. The Claimant said he had seen people eating that amount of food on site and did not realise that NG was taking the food home after his shift. The Claimant says the minutes left out that he had said he could only answer this question from a hypothetical basis of if he were to face the situation at that time. He says he also explained that KB had said that each meal had to be put through individually at 50% and could be used multiple times. He said he also said he had eaten a similar amount of food himself which is why he thought it was a reasonable amount of food. He says that he also made it clear to CJ he was not aware that NG would be taking food home.3.19 The minutes suggest the Claimant said that SN and Ceri had said the 50% was allowed to be taken home. The Claimant says he in fact said there had been some confusion on the staff chat, and that SN and Ceri Gough had said that staff feeding could be taken away but additions to the meal with the 50% discount could not. He says that CJ then said that staff feeding could not be taken away and that he later showed CJ SN’s message saying that it could be. He says that he had corrected the minute taker about this but the minutes remained wrong.3.20 The Claimant raised that SN’s key had been used that day. CJ said that he had not been asked to look into that issue at the disciplinary hearing.3.21 The Claimant was asked if he had found out if NG had had free food. The minutes say the Claimant said he did not really remember, and his thinking was that if NG was ordering these small bites then he thought NG was going on his break and that he realised it was not going to be the free food because of the amount that NG ordered. He said, according to the minutes: “I was not sure if he was going to take it home.” The Claimant says that is not accurate and that he said that because of the amount NG was ordering it could not go through on staff feeding, that it would fall under the next category of 50% discount and that he believed NG would consume it all on site. He says he repeatedly said he had no knowledge NG intended to take any food home and that he believed NG would consume all the food on site.3.22 CJ put to the Claimant that NG’s break was at 6pm, that the Claimant was running the shift, and did he not know what time NG went on his break. The Claimant said he did not realise NG had had his break as that may have been arranged with SS. He said he thought NG was going on a break as it was the first time NG approached him to put food through and: “I knew he would not be taking it home.” The Claimant says the minutes miss out him saying he believed NG was going on break at this time as it was the first time had had been approached about putting food through and when staff approach him about that it is an indication they are about to go on a break.3.23 According to the minutes the Claimant confirmed NG had not asked for 50%. He said did not know NG had earlier put his food through using SN’s key. CJ asked the Claimant why NG put the food through an hour before finishing. According to the minutes, the Claimant said he was not sure, and that is why he thought it was the break food and not food to take home.3.24 The Claimant said that KB had said he should have put the items through individually at 50%. CJ said that would still be misuse of the discount policy. CJ said according to the minutes that reading it through NG was taking it home to feed his family and that was not what the discount was used for. The Claimant says that CJ surmised that based on what happened i.e. it looked like NG was taking the food home for himself and his girlfriend but this was not actually known. The Claimant said again he did not realise NG had his staff feeding and thought that NG was going to consume the food on site.3.25 The minutes appear to suggest CJ said: “Even though you knew he had processed food earlier then suddenly wanted to order more with you” and that the Claimant said: “That’s what I cant really understand either.” The Claimant says he had categorically stated before this question that he was not aware NG had processed the food earlier. He says he told CJ that if he had been fully aware that NG had already put in a staff feeding meal he would have been more savvy to what NG was ordering and that it may be a takeaway meal, with the 20% discount. But as he was not, he thought it was going to be consumed on site. He said that KB and Shanelle Craze had also been confused about the application of the 50% policy.3.26 Straight after the disciplinary hearing concluding CJ emailed the minutes through to the Claimant asking him to say if there were any issues with the document [113].3.27 CJ gave the Claimant the outcome on the day, after an adjournment. It was followed up with an outcome letter on 17 February [135]. The allegation against the Claimant was upheld and CJ concluded that it was gross misconduct. In the letter CJ noted that in mitigation the Claimant had stated he did not know NG was going to take the food home, and that the Claimant thought it was normal for staff to consume that much food during their breaks using the 50% discount. It was noted the Claimant had said he did not know NG had already had his break and staff feeding.3.28 CJ wrote: “After viewing the CCTV, reviewing all the evidence and listening to your mitigation I believe that you breached the Company on shift 50% discount policy by giving Noah Gardner 50% on his 2 halloumi fries, 2 chicken breast bites; a can of Monster Energy & a can of Monster Punchline. Noah then took the food & drink home instead of consuming it on site. By allowing this I believe you breached the policy twice by allowing… him to purchase excessive products at the 50% on shift rate and by allowing him to take the home. The Company have been vigorously communicating any misuse of the discount policy will result in a zero tolerance approach to any member of staff who misuses it. The investigation and hearing also brought to light that shortly before (20:02) you processed Noah’s 50% on shift discount he had processed through the till his own staff feeding meal some 2 hours after his break when he had consumed it which you had no knowledge of him doing so or even going on his break. I find this both worrying and surprising that as the Duty Manager with so few staff to manage on the shift in question you had no knowledge or control over what was going on. I have listened to everything you have said and reviewed all of the evidence, and have decided that your actions amounted to:• Abuse of “employee discount” policy or complimentary food at work policy• Any conduct resulting in a fundamental breakdown in trust & confidence; intentional behaviour which involves a serious breach of policies & procedure.• Gross incompetence or gross negligence in carrying out duties• Under ringing tills, including deliberately undercharging for products.”3.29 CJ considered the Claimant’s actions amounted to gross misconduct under the policies. CJ considered whether a final written warning would be suitable but decided that given the Company’s zero tolerance stance and that the policy had been breached more than once, that dismissal was a fair and reasonable outcome. He took account of the Claimant’s service and clean disciplinary record. The Claimant was dismissed without notice. He was given the right of appeal.3.30 CJ said in oral evidence that NG was about to finish work and 2 portions (i.e. 20 chicken bites and 16 halloumi fries) with the two Monster drinks was excessive for an additional meal, and it had been flagged as such by the IntelliQ report. CJ said that as a manager running the shift you should know things like when staff are on a break. I pressed CJ as to whether he was saying his belief was that the Claimant should have known more about what was going on, on that shift, or whether CJ believed that the Claimant positively knew that NG was taking the food home. CJ stated that he ultimately did not believe the mitigation that the Claimant had put forward, and that CJ believed at the time of the disciplinary hearing the Claimant had knowingly let NG take the food home. CJ said he also did not accept the Claimant’s assessment that it was normal for staff at the pub to eat that much food during their breaks. In relation to the Claimant’s knowledge of whether NG had already had a break/staff feeding, CJ said he found it strange that the Claimant did not know NG had not had a break at that point. CJ said that the Claimant should have known when staff had their breaks and if the Claimant had been on top of that CJ thought that things would have had a different outcome. But CJ also said that he was not sure, on that particular point, that the Claimant actually did know that NG had had his break. CJ said, when asked by me, that he put that in the category of the Claimant being neglectful and as the duty manager should have known, rather than being a finding the Claimant did know. CJ said he believed the Claimant’s actions amounted to abuse of the employee discount policy because the Claimant had processed for NG an excessive amount of food and food for NG to take home with him. CJ said he viewed that as intentional behaviour, and that NG had not even asked for the 50% discount. CJ said he also considered that to be deliberate undercharging because it should have been processed at the 20% discount.3.31 I asked CJ if there was a potential difference between the Claimant making a mistake/ making a bad judgment call, as opposed to intentionally giving NG something NG was not entitled to. CJ said he could see there could be a difference and that at the time he believed that the Claimant had knowingly given NG the 50% discount, knowing that NG would take the food and drink home.3.32 The Claimant disputes that CJ thought at the time that the Claimant had engaged in knowing /intentional/ deliberate conduct. He says that CJ had simply thought the Claimant had “allowed” NG to have the food/drink at 50% and that the additional evidence only came in response to my questions. I asked the questions because otherwise I was not entirely clear about what CJ said he thought at the time/ how he had evaluated the allegations because some of the alleged breaches of policy refer to intentional conduct and some to gross negligence. On the balance of probabilities I find that CJ genuinely thought at the time that the Claimant had processed the 50% transaction knowing that NG would be likely to take the food home. I find that CJ genuinely thought that was in breach of policy in two respects. First, that it was an excessive amount of products, and second, that NG would be taking it home. I find that on the balance of probabilities CJ was not convinced the Claimant knew that NG had already had his break. CJ believed that NG had not asked for the 50% discount. I consider that these findings accord with what CJ said and wrote at the time. For example, he wrote findings in to his outcome letter that referred to intentional behaviour and deliberate undercharging.3.33 There is a dispute whether CJ saw the CCTV. CJ said he saw the CCTV at the Pontlottyn pub prior to the disciplinary hearing. KB’s evidence was that she had put the CCTV onto a USB for CJ. I am satisfied, on the balance of probabilities, that CJ saw the CCTV. I do not find the difference in recollection between CJ and KB particularly troubling; it is the kind of detail that individuals do misremember with the passage of time. I have already made a finding of fact that the Claimant had already seen the CCTV and he had also been given the offer of going on site to see it again. In those circumstances there would be nothing to be gained from withholding the CCTV from CJ. The CCTV was not shown at the disciplinary hearing itself. CJ said in evidence the Claimant had been told he could attend site to view it but the Claimant had not. CJ said the Claimant also did not ask to see the CCTV at the disciplinary hearing, but that if the Claimant had then they could have looked at getting a copy or adjourning it to allow the viewing to happen.3.34 CJ said in evidence that since Covid it had become common practice to email minutes to attendees to check on conclusion of the meeting rather than writing them out with the employee checking and signing them then and there. He said the minutes had been emailed to the Claimant whilst the Claimant was still in the meeting. At the time the Claimant did not respond to CJ with corrections to the minutes.3.35 The Claimant appealed and attended an appeal hearing on 6 March 2024. His appeal document is at [137]. It was there that the Claimant said the minutes were not an accurate representation of what he said at the disciplinary hearing, but he did not set out the inaccuracies/ corrections at this stage. The Claimant was accompanied by a former colleague, Marcus Taylor. The hearing was chaired by Dannie Stephens, Area Manager [DS] with a pub manager, Chris Went, acting as note taker. The appeal date was moved from the original date because the Claimant needed to attend a funeral. In advance of the appeal the Claimant asked to see the CCTV footage. On 4 March 2024 KB put the CCTV footage on to disc for the Claimant. KB told him she was putting on to disc: “the same transaction I showed you on screen.” The Claimant did not reply to KB to say she had never showed him anything on screen at the investigation stage. On 5 March 2024 the Claimant chased KB about other CCTV footage [CB4]. She replied to say that DS had said there was no need for any other CCTV as DS would be using the CCTV that both she and the Claimant already had. DS said she had attended the pub to watch the CCTV footage. KB said in evidence that she put it on a USB disc for DS but DS had difficulties with that so had attended the pub to watch it. Again I am satisfied that DS saw the CCTV before the appeal hearing.3.36 The Claimant read out a statement found at [151]. Matters that he raised included that LO had not been interviewed about his conversation with NG about putting food through the till and using SN’s key, or why LO did not refer NG on to the Claimant as the duty manager. The Claimant said SN had not been interviewed about leaving her till key and not telling the Claimant she had done so. He said Courtney Preece was working on the bar at the time and had not been questioned, and SS had not been interviewed about measuring out NG’s food. He again complained about the accuracy of the disciplinary hearing minutes, and said that there were false statements that seemed to suggest the Claimant’s guilt had been pre-determined or done to depict the Claimant in a negative and guilty manner. He said that contrary to policy, the minutes had not been checked with him and signed at the end of meeting. The Claimant said that there was no evidence that he had allowed NG to take food home, and that it was said he breached policy by allowing NG to purchase excessive products at one time when that was not said in the policy. The Claimant said he had believed the food was NG’s only meal of the day and was a reasonable amount that could be consumed on site and therefore the 50% discount had been correctly applied. He said again that he was not aware that NG had left the premises with any food.3.37 The Claimant also said that on 4 March 2024 KB mentioned to him that members of staff had said that NG had also taken his free staff feeding meal home too. KB said in oral evidence that she had just heard that as “hearsay.” The Claimant also complained about not being provided with other CCTV footage and that the CCTV footage he did have was only given the day before the appeal after multiple requests. He alleged that KB did not show him any CCTV at the investigation meeting.3.38 The appeal minutes can be found at [155]. DS asked the Claimant what information he believed the additional witnesses would bring forward. The Claimant said he believed it would show NG had ordered the food in a deceptive way and unbeknown to the Claimant. He said if LO had told him about NG’s staff feeding then the Claimant would have known that NG was ready for food. In relation to questioning SN, he said he did not know how that would change things other than if her key had not been on site then perhaps he would not have ended up where he was. He questioned whether the key was left there deliberately. He said that Courtney Preece would have known that NG had two lots of feeding and had undertaken the two transactions. He said SS portioned the food and would have brought it to the Claimant’s attention. He said all four witnesses would show NG’s actions were deceitful.3.39 DS asked the Claimant if he had ensured he was in control of breaks would it have made a difference. The Claimant said that there was no way to definitely know that NG would have come to him. DS said the deceit may still have happened. The Claimant handed in a copy of his revisions to the minutes of the disciplinary hearing and he ran through them with DS. DS said she was happy to use the Claimant’s version of the minutes.3.40 They also discussed the Claimant’s points about the decision to dismiss relating to his length of service, clean disciplinary record and that the policy did not refer to a limit on how much food could be put through. DS referred to step 7, and said there were 4 side orders and while the word excessive was not used, it was implied. The Claimant said again that he felt NG’s order was within policy as he believed it was NG’s only meal, NG was ordering multiple items, NG would be consuming it on site and it was a reasonable amount to consume on site.3.41 DS challenged the Claimant saying had he not thought that NG had gone 5 hours without food and NG was going home soon. The Claimant said it was the first time that NG had approached him during the shift and he had not happened to notice what time it was. DS said that if someone was working for 5 hours straight and the Claimant did not notice whether staff were taking their breaks then she was questioning the Claimant’s capability. The Claimant said that on the day NG and SS had arranged for NG’s break without consulting him about it, that he had not noticed NG going and did not ask. He said it turned out that NG had gone on break shortly before 6pm when they were recovering from the bingo clean up. DS asked the Claimant why he had not asked NG for clarity when processing the transaction. The Claimant said it was his belief and understanding that NG had not been on his break.3.42 DS suggested to the Claimant that if he had led and managed the shift rather than assuming things, then the Claimant would have processed the transaction correctly. The Claimant said if he had taken the time to speak to kitchen staff and look at the planners, and if NG had gone to him to process his food, then the Claimant would have been aware that NG had already had his staff feeding and would have processed the correct discount, but that at the time he believed NG was eating the food on site. He said as NG was ordering multiple items he believed it fell outside staff feeding but was within the 50% discount policy. He said it was also a busy evening and his priority had been in ensuring the pub was run in a clean and organised manner, and he had arranged breaks for the bar staff.3.43 After an adjournment DS gave her decision. She said she did not believe the additional witnesses raised by the Claimant would have provided any information other than the transaction did take place and that NG took the food home and that they were already aware of those things. DS said the minutes were not intended to be word for word, and while some words were a summary, it was on an inaccurate record of what was said. She said the Claimant had failed to set out his corrections when sent the minutes by CJ, instead bringing them to the appeal hearing. She said some of the minutes were an over simplification of what was said and that after reviewing the Claimant’s account it was an accurate record of what was said and the Claimant’s expansion did not change that account. In terms of sanction, DS said she understood the Claimant’s length of service and clean disciplinary record: “however the facts of the matter are, that you processed the transaction for Noah’s food at 50% which he took home which is in breach of our policy. Whilst I understand you believe this was to be consumed at the time as part of his break, you failed to lead manage and organise your shift sufficiently to prevent the breach from taking place. Instead you assumed and believed your shift would do this for you. Which makes you directly responsible for breach in policy, for that reason I have decided to uphold the decision to summarily dismiss you from your position as shift leader with the company…” There is nearly identical wording in DS’s witness statement for these proceedings, saying: “Whilst I understood that Mr Castagna-Davies believed that the food was to be consumed at the time as part of Mr Gardiner’s break, he failed to lead, manage and organise his shift sufficiently to prevent this breach of policy from taking place. Instead he assumed and believed that the team on duty would do this for him, which in my opinion made him directly responsible for the breach in policy.”3.44 DS also sent the Claimant an appeal outcome letter [169]. This included a conclusion of: “I have taken into account the mitigation that you have raised and do not believe it to be reasonable or suitable to mitigate your conduct. I believe that you have breached JD Wetherspoon policies and failed to take adequate steps that were available to you that could have prevented your actions on the day. Therefore I do not feel that the outcome of this disciplinary was unfair, incorrect or unjustified. I understand that you feel that the sanction is too harsh; however, the disciplinary policy states that it is possible to offer summary dismissal for incidents of gross misconduct – and the decision falls within these boundaries.”3.45 DS said in oral evidence that with the Claimant having 21 years experience and not knowing where staff were and who had had breaks and who had not, then she found that difficult to believe. She said she did not believe the Claimant when he was diligent in so many other areas. She said she thought the Claimant had abused the discount policy, and she did not know why he had done it, but that he did. DS said that at the appeal hearing she was asking questions about how diligent the Claimant was on shifts and why he was not so diligent here, and if he was competent, to decide if the Claimant was being truthful. She said that the Claimant was trying to tell her the person who had done it was dishonest with him, and the Claimant was not aware of what was going on the shift and not paying attention. She said but the Claimant was a diligent manager and she did not find that the Claimant’s account was truthful and she had concluded it was a deliberate action on the Claimant’s part. She said that was why she upheld CJ’s decision. She said she did not believe someone with his length of service and diligence (such as never missing a toilet check) would then not know break times or where NG was working.3.46 It was put to DS that there was a difference what she was saying now and how she summed up her decision at the time. DS said that the reference to failing to manage and organise the shift was in relation to the mitigation the Claimant had given her and she was negating his mitigation. She said she was going through the Claimant’s points of mitigation rather than setting out her own reasoning. It was put to her that while she said the disciplinary hearing outcome was upheld she had not set out facts that she relied on other than those in this summing up about failing to manage and organise the shift. DS said it may be there should be an extra paragraph in there, and it was a grammatical error.3.47 It was put to DS that she gave a totally different reason to CJ. DS said she had not and again said that she was just refuting the Claimant’s mitigation, with her whole summing up starting at [165]. She said the Claimant raised 4 points on appeal, and the last one was about the decision, and that his mitigation was that he was not in control of the shift and she was summing up that section of mitigation and then went on to uphold the decision to dismiss. She said the Claimant was saying that it was not his fault it happened, and she was summing up to say that if he had managed his shift then it would not have happened to refute his mitigation.3.48 I asked DS if she thought the Claimant had thought NG was going to eat the food on the premises. She said she thought that if she was in the Claimant’s position, an hour before finish, then she would presume NG was not going to consume all the food and 2 cans of Monster and the likelihood was that NG would take it home. She said that was her thought process and she would expect her managers to do that. I asked her why she therefore wrote what she wrote at the time/said what she said. She said it was because it was what the Claimant had told her he believed so she understood what he was telling her that he believed; but that she did not actually accept that. I asked her why she then went on to say the Claimant had failed to lead. DS said it was because the Claimant was putting to her that his team were making the decisions and not him and there were only a couple of members of staff in work and she did not believe a diligent manger would not know and have processes in place. I asked if she thought the Claimant was doing NG a favour. She said not necessarily but maybe it was to carry favour with the team as NG said he had not asked for the 50% and it had just been given to him.3.49 I have given this point particular consideration. I cannot accept what DS said in oral evidence about her reasoning and conclusions at the time. On the balance of probabilities I find that at the time of the appeal hearing DS had accepted that the Claimant’s account that he did not think that NG was taking the food home. DS clearly stated at the time of her oral appeal hearing decision: “Whilst I understand you believe this was to be consumed at the time as part of his break…” In her witness statement for these proceedings she was clearer again, saying: “Whilst I understood that Mr Castagna-Davies believed that the food was to be consumed at the time as part of Mr Gardiner’s break…” DS said in oral evidence what she meant was that she was acknowledging the Claimant was saying he believed NG was going to consume the food as part of a break, but that she ultimately rejected this assertion. She said she was dealing with the Claimant’s mitigation and rejecting his assertions. But what she said at the time and her witness statement for these proceedings simply do not say this. In fact her witness statement is an even clearer statement that she accepted that the Claimant believed the food was going to be consumed as part of NG’s break. The Respondent has been legally represented throughout. This was DS’s sworn witness statement. If what was said at the appeal hearing did not fully reflect what DS actually thought/concluded then it would have been set out in the witness statement, if not before.3.50 In my judgement at appeal stage DS did uphold the dismissal on a different basis to CJ. On appeal DS accepted that the Claimant mistakenly thought that NG was going to eat the food on site on a break, but concluded that if the Claimant had managed the shift better, including knowing when his staff were taking their breaks, he would have known that NG had a break at 6pm, would have known NG should already have had his free food, would have known NG had less than an hour left on shift, and should have questioned NG about whether he was taking the food that the Claimant processed through the till home. That accords with what DS said about the Claimant failing to properly lead, organise and manage his shift. 3.52 I acknowledge that DS’s decision letter had different content. It says she did not believe the Claimant’s mitigation to be reasonable or suitable to mitigate his conduct and she believed the Claimant had breached the Respondent’s policies. But the difficulty is that it does not explain what is meant by this beyond what was said orally at the time. It also accords with what was said at the appeal hearing and with DS’s tribunal written statement where she says the Claimant had failed to take adequate steps that were available that could have prevented his actions on the day. 3.53 At the appeal hearing the Claimant was given the minutes to check, which he did. He did not however sign them on the day. They were also emailed through to him a few days later. There has not been a dispute about their accuracy. 3.54 In these proceedings the Claimant asserts that he did not agree at the time of the disciplinary hearing that NG had not asked for the 50% discount. There are two versions of the Claimant’s amendments to the disciplinary hearing minutes. In neither version did the Claimant change at the time that he had agreed that NG had not asked for the 50% discount. 3.55 There was reference at the time and at the tribunal hearing to Employee Discount Policy [266]. This said that the 50% discount was for food and nonalcoholic drinks when working on orders including orders taken up to 60 minutes either side of the shift’s start and end and is not available on items to take away. It said: “The discount applies to items which can be reasonably consumed by that employee on that shift and cannot be used to purchase items for other employees or friends or families. Side orders and additions were included but only as an addition to a meal and food and drink must be rung through the till and paid for before consuming.” 3.56 The disciplinary procedure says that written minutes will be taken at the time of the meeting and they should be checked and signed by all parties at the end [254]. It also says that employees should have the opportunity to read and sign each page of the minutes taken during the disciplinary hearing before the final decision is communicated [263]. The appeal procedure says that employees should have the opportunity to read and sign each page of the minutes taken during the appeal hearing before the final decision is communicated [248]. 3.57 The disciplinary policy sets out some examples of gross misconduct. A section of that is headed “dishonesty in the course of duties” and includes abuse of the employee discount policy or complimentary food at work policy and under ringing tills, including deliberately undercharging for products. A section headed “behaviour” includes gross incompetence or gross negligence in carrying out duties and also “any conduct resulting in a fundamental breakdown in trust and confidence; intentional behaviour which involves a serious breach of policies or procedures.” The policy also sets out how disciplinary sanctions might escalate. In the section about gross misconduct it is possible to have a first and final written warning as an alternative to dismissal and that may be a sanction which comes with an offer of demotion as an alternative to dismissal. It also says that summary dismissal may be imposed since the offence is so serious that it is inappropriate for the employee to remain in employment.[4]Discussions and Conclusions What was the reason for dismissal?4.1 As set out above CJ and DS had differing reasons for dismissal. CJ considered that the Claimant had given NG the 50% discount knowing that NG was going to take the food/drink home rather than consuming it on site on a break, and in doing so had breached the policy in allowing NG to take the food home and in the quantity of products given at the 50% discount. DS at appeal stage found that the Claimant had put the products through the till, had thought NG was going to consume the products on site on a break (although NG did not, which was in breach of policy), but that if the Claimant managed his shift better he would have found out the true position and would have prevented the breach happening. The Claimant argues this was more of a capability/performance concern than conduct.4.2 There can only be one principal reason for dismissal. I find that the principal reason for dismissal was conduct. CJ’s reasons were squarely conduct reasons. DS’s reasons related to the Claimant’s conduct in putting the transaction through and in not taking steps to manage the shift in a different way. I appreciate the link the Claimant makes to capability to perform work of a kind the Claimant was employed to do. But what DS was also saying was that it was not that the Claimant was incapable of carrying out his management responsibilities; it was that he had failed to carry out his management responsibilities he was capable of doing. This links back again to the Claimant’s conduct on the shift in question. On balance I find the principal reason for dismissal was conduct which is a potentially fair reason for dismissal.4.3 As I understood the Claimant’s case, it is submitted that the Claimant’s dismissal was a sham. It was said that KB and SN (and in turn everyone else involved such as CJ and DS) wanted to cover up the widescale use of SN’s key card (and/or other breaches of policy by staff) and that the whole situation was manipulated to focus on the Claimant and his authorisation of NG’s transaction. For example, it was argued that the CCTV was deliberately withheld because it would show NG and LO using SN’s keycard. I do not accept these assertions. I have not found as a matter of fact that the CCTV was ever withheld from anyone. LO’s involvement was always known (including indeed by the Claimant from the transaction logs who had observed to SN at the very outset he did not understand why NG and LO had not come to him). The use of SN’s keycard was always known. For example, NG was asked about it. I do not find that there was any wider plot engaged here or the deliberate suppression of evidence or investigation strategies. The disciplinary process happened because the transaction happened, IntelliQ flagged it up, there therefore had to be an investigation into the Claimant processing NG’s order, KB investigated and thought the Claimant had a case to answer, and CJ (followed by DS) made the decisions that they did on what was put before them, all in the context of the Respondent treating breach of the discount policy seriously. CJ and DS’s conclusions were their genuinely held beliefs. Were there reasonable grounds for the belief?4.4 I find there were reasonable grounds for CJ’s beliefs. CJ was not bound to accept the Claimant’s assertion that he thought NG was going to consume the products on site; simply weigh it into account. I am satisfied that CJ did so; he referred to the Claimant’s mitigation in the dismissal letter. CJ had a reasonable basis on which to reach a differing view based on the quantity of the product and the fact that NG was less than an hour from finishing his shift. CJ also had NG’s assertion that he told the Claimant he was taking the product home. In relation to the second breach of policy relating to excessive products, the Claimant asserts that the discount policy does not use the word excessive. It does not, it refers to items which can be reasonably consumed by that employee on that shift. It was this concept that CJ was referring to. CJ was conducting a disciplinary hearing not High Court litigation and use of the word excessive adequately captured the concept. Given this was two portions of chicken bites, two portions of haloumi fries and two Monster energy drinks less than an hour from the end of the shift there was a reasonable basis to consider these were items that could not reasonably be consumed by the employee on that shift (including the 60 minutes either side). It was too much (as the Claimant acknowledged) for the free food meal. CJ was also himself an experienced pub manager with knowledge of what was likely to be eaten by staff on a break in those circumstances.4.5 There were also reasonable grounds for DS’ belief. She had accepted the Claimant’s account that he thought that NG would consume the products on a break on shift. That she reached a view contrary to CJ does not mean that there was not a reasonable basis for CJ’s differing view. There was a reasonable basis for her belief that the Claimant should have managed his shift better and if he had done so it was likely the breach would not have happened. There was a basis for the belief the Claimant was otherwise usually a diligent manager; for example carrying out toilet checks. There was a basis for the belief that as duty manager the Claimant should have known when all staff (including the kitchen) were taking breaks as opposed to leaving it to SS for the kitchen. DS was an experienced manager and area manager so would know what responsibilities a duty manager had. There was also the point that NG was coming to the Claimant with this quantity of food, less than an hour from NG’s finish time, and the point that as a manager the Claimant could have used his initiative and had a quick conversation with NG at the till to check whether NG had had a break and when, to check that NG was planning to consume the food on shift and when. That would probably have flushed out NG was intending to take the food home and after that there could have been the correct application of the 20% discount instead. Was it based on a reasonable investigation? / Fairness of the procedure4.6 As already stated, I find as a matter of fact that the IntelliQ report only mentioned these particular NG transactions, and it is not the case that other highlighted transactions were ignored. KB also explained in evidence that the other transactions now highlighted by the Claimant were not in fact in breach of policy. For example, alcohol can be purchased using the 20% discount. Again, as already stated, I do not find that there was a deliberate ploy by KB and others to focus on the Claimant (or the Claimant and NG) as a cover up for the use of SN’s till key. I do not agree that KB had a conflict of interest and should not have been the investigator. The use of SN’s till key would not feature on the IntelliQ report because the system does not know when a manager’s till key is being used by someone else. It’s use was known (as it features for example in KBs questions of NG). KB told us, and I accept, that NG did face his own disciplinary proceedings receiving a final written warning. Why there was no action taken against others, such as LO, about use of SN’s till key I do not know. Nor do I know why the Respondent’s ET3 incorrectly states that there is no evidence that other staff used SN’s till key. But that does not in my judgement affect the fairness of the Claimant’s process which was not about use of the till key but about the transactions he authorised.4.7 As to the adequacy of KB’s investigation; she did not interview the four individuals that the Claimant identified at appeal stage. That KB focused on questions on the Claimant and NG was, in my judgement, within the reasonable range open to an employer in the circumstances; they were the individuals who had put the transaction in question through. The questioning of NG and the Claimant was short but was within the reasonable range; addressing the key points. It is said that KB took NG at his word in saying he had not asked for the 50% discount. But the Claimant’s own account (at least until tribunal stage) was likewise that NG had not asked for the 50% discount. Moreover, KB was just recording what NG said.4.8 A key argument made by the Claimant is that KB inappropriately merged two separate investigations. She asked NG about use of SN’s till key and then asked him about the second 50% transactions. It is said the first part should not have featured in the Claimant’s process. I consider that KB’s actions were within the reasonable range. The first transaction of the free meal using SN’s till key had happened minutes before the 50% discount transaction the Claimant authorised. It was legitimate to consider whether these two things were linked. Moreover, whether and when NG had had a break and his free staff meal were relevant considerations as to whether the Claimant thought, and had reasonable grounds for thinking, that NG had not had a break and was going to consume the 50% products on site on a break. Further, that NG was questioned about use of SN’s till key did not prejudice the case against the Claimant at all; the allegations the Claimant was being asked to answer were clear.4.9 I have already found as a matter of fact that the CCTV was shown to both NG and the Claimant at their interviews, contrary to the Claimant’s assertion. It was not the case therefore that, for example, LO’s involvement in the first transaction was being hidden. It could be seen in the CCTV shown to the Claimant and others. Indeed, the Claimant always knew of LO’s involvement. In that context, KB’s questions to NG about that first transaction were not misleading nor deliberately written in a way with an intent to mislead.4.10 The Claimant correctly points out that KB did not write a separate investigation report. But in the circumstances I do not consider that was unfair to the Claimant. It was a simple investigation with the two interviews, the other key documents the Claimant was sent/given access to and the particular allegations the Claimant was facing, and why, was always clearly set out and understandable. KB was also only determining whether there was a potential case to answer; she was not reaching a decision herself on the allegations.4.11 Turning to the disciplinary hearing stage, again I have found as a matter of fact that CJ had viewed the CCTV. I therefore do not accept that key evidence, such as the involvement of LO in the first transaction, was been kept hidden from CJ. The CCTV was not played at the disciplinary hearing but CJ was working on the basis he had viewed it and the Claimant had viewed it, and the Claimant had been given the opportunity to view it again if the Claimant had wished to do so. That was a reasonable way to proceed. Moreover, the Claimant did not ask at the disciplinary hearing for it to be played or to watch it again. I accept that if he had done so CJ would have made appropriate arrangements.4.12 It is said that due to the mixing of evidence from the unrelated NG allegation, into the Claimant’s case, that it caused confusion for the Claimant and he was unable to properly defend himself against the allegation. As I have already stated I have not found there was inappropriate mixing of evidence. I also do not find that the Claimant was confused and unable to properly defend himself. The contemporaneous documents show he was engaged throughout the process. CJ clearly understood the basis of the Claimant’s defence as CJ succinctly captures it in his decision letter.4.13 In relation to the disciplinary hearing minutes; the Claimant’s own amendments to them are somewhat confusing because they are a mix of corrections about what was actually said at the hearing, together with adding further detail and wider context. But I would accept that in some places the minutes did include errors about what was said. The minutes were of course not actually written by CJ. I also do not consider that the inaccuracies caused unfairness to the Claimant in the decision making. CJ was present and heard what the Claimant actually said and CJ made his decision on what he actually heard, together with the other documents. CJ was not mislead by any inaccuracy in the minutes. That can be seen from CJ’s decision letter where CJ correctly captures the basis of the Claimant’s defence/mitigation.4.14 The Respondent’s own policy says that the minutes should be checked and signed before the decision is made. The Respondent says that common practice has changed since Covid. Whilst that may be the case, if they have changed their practice or have a more flexible practice then the Respondent should properly record that in their disciplinary policy. They are a large employer and their employees are entitled to expect the policy should be followed. But as I have said I do not think the absence of checking, amendments and signing actually affected the fairness of CJ’s decision making because he heard the correct version of the Claimant’s account. Moreover when DS was consider the case at appeal stage, she had the Claimant’s corrections/amendments before her and proceeded on the basis of their content.4.15 CJ did not take steps to interview the other individuals identified by the Claimant later at appeal stage. But the Claimant did not suggest to CJ there were other people who should be interviewed and it was within the reasonable range for CJ to proceed in the manner that he did in that regard.4.16 It is said that CJ just seemed to be going through the motions. Based on the minutes and CJ’s evidence I do not accept that was the case. It is aid that CJ was not interested in SN’s till key being used. What CJ said was that was not the allegation he was being asked to make a decision about; that response and position was within the reasonable range. It is also said that the minutes show they were printed and edited in the break. CJ said that was because he wrote his decision part and printed that out so he could read it out; I accept what CJ says in that regard as it is a logical step to take.4.17 Turning to the appeal, the Claimant asserts that at the start of the appeal he read out a grievance and that DS should have paused and investigated his grievance first. I do not find that the Claimant read out a grievance. What he read out were his points of appeal or arguments in support of his appeal. DS then tried to work through those with him. The process that DS followed in that regard was within the reasonable range.4.18 In my judgement, it was within the reasonable range for DS to not pause the appeal to go away and interview the four individuals identified by the Claimant. I do not consider that the Claimant ever clearly explained at the time what all these other individuals had to add that would make a difference. As I understand it, the essence (or part of it) is that NG and LO may have been seeking to keep the earlier staff feeding meal transaction from the Claimant so he would be less likely to ask questions about breaks/taking food home, and that it is relevant as to whether NG’s account was trustworthy, as a whole, impacting on matters such as whether NG should be believed in NG’s assertion he told the Claimant he was taking the food home. But here DS ultimately accepted the Claimant’s assertion that he believed that NG was going to consume the items on site on a break. She spoke with the Claimant about the “deception.” The Claimant says it is also relevant to DS’s conclusions about his management of the shift; because he has to be able to rely on his staff including team leaders such as LO. But DS’ point in this regard was about the Claimant taking steps to know break times and to have asked the simple questions he could have asked of NG when putting the transaction through and her conclusions in that regard were within the reasonable range.4.19 It was put to DS that she had not investigated the Claimant’s concern that KB had later told him that she had heard NG took the free food home as well, and that had not been investigated. DS said in evidence she thought that it was just gossip and hearsay and she thought she had asked the Claimant what evidence he had but there is no record of that in the minutes. DS said she may have thought that rather than saying it. DS said that it would also be a separate incident and not to do with the Claimant’s dismissal. The Claimant says it shows that NG was telling more lies. Again, I am not convinced that is relevance was clearly explained by the Claimant at the time. But in any event DS ultimately accepted that the Claimant believed that NG was going to consume the products on site.4.20 The Claimant alleges that DS was generally uninterested and dismissive of his concerns. Based on the minutes I do not find that she was. He says the appeal minutes were also not given to him to read and sign at the end of the appeal meeting and were instead emailed 6 days later. The Claimant did however get to see the minutes and make amendments to them at the time before the appeal decision was made. Whilst the Claimant did not sign them I do not find that he suffered any actual disadvantage here. Indeed, the Claimant has not identified anything wrong with the appeal minutes. The Claimant also alleges that DS did not see the CCTV but I have found as a matter of fact that she did. I also do not accept that she was involved in some kind of cover up or had a conflict of interest. DS was simply dealing with the appeal on its merits as area manager.4.21 Overall I would find that the conclusions reached at disciplinary hearing and appeal stage were based on a reasonable investigation and the process followed was within the reasonable range. The Respondent’s policy on checking minutes at the disciplinary hearing stage should have been followed; but I do not find that failing actually impacted on CJ’s decision making and would not be something I would consider of itself would render the dismissal unfair. The decision to dismiss4.22 If I were only considering CJ’s decision to dismiss then I would consider that to be within the range of reasonable responses. His conclusion, based on reasonable grounds, was that the Claimant had intentionally and deliberately given NG the 50% discount on an excessive amount of food knowing that NG would take it home. It may be a small amount, and it is within context of the Claimant’s long, good service. But the Claimant was acting as a manager at the time and the staff discount system is one built on trust. If open to regular abuse it would be costly to the Respondent. It is understandable that the Respondent generally took a strong attitude to such breaches and that standard was widely known, including by the Claimant. It was within the reasonable range for CJ to consider it amounted to gross misconduct in the sense of abuse of the employee discount policy, the under ringing of a till and deliberate under charging for products as well as intentional behaviour involving a serious breach of policies or procedures. Within context it was in the reasonable range for CJ to then choose dismissal as a sanction. He weighed mitigation such as length of service and clean disciplinary record but was not bound to conclude, in the context of a breach of trust, that dismissal was not appropriate. It is not clear to me that CJ thought through conclusions on gross incompetence or gross negligence but that is immaterial given his other conclusions.4.23 I do not understand the Claimant to be arguing the decision to dismiss was unfair in terms of inconsistency in sanction. He accepted that he knew others had been dismissed for breach of the staff discount policy. But if I am wrong about that, I would not consider that the fact NG was not dismissed rendered the decision to dismiss the Claimant as unfair. It was the Claimant who was the manager authorising the transaction. I also do not consider that the fact that there was no disciplinary proceedings against others (other than NG) for use of SN’s till key or no proceedings against LO would render the Claimant’s dismissal unfair. I do not consider they are in materially the same position as the Claimant who was acting as duty manager and the scenarios are also not on “all fours” with the Claimant.4.24 However, I am not simply considering CJ’s decision. I am considering DS’s decision on appeal too. Here I am troubled. DS, in my judgement, accepted that the Claimant thought that NG was going to consume the products on a break. She upheld the disciplinary findings against the Claimant because she considered he should have managed the shift better and if he had done so then NG’s intentions would have come to light and the breach of the discount policy would not have happened. I do not consider, in that context, that it was within the reasonable range to conclude that the Claimant had acted dishonestly. It was not within the reasonable range to conclude there was abuse of the employee discount policy in the sense of doing so deliberate under ringing of a till or deliberate undercharging for products or intentional behaviour that was a fundamental breakdown in trust. I also do not consider that it was within the reasonable range to conclude that the Claimant’s actions (on the basis of DS’ findings) were gross incompetence or gross negligence, as opposed to being simple negligence that falls within the misconduct category of the Respondent’s policy. There is no evidence that DS gave any thought to that at all. She seems simply to have operated on the basis that the Claimant should have managed the shift better, that if he had done so the breach would not have happened, therefore the Claimant should be held responsible for the breach, and it was possible under the policy to dismiss for a single act. There was no weighing of the actual seriousness of the Claimant’s actions in their actual context. DS seemed to have viewed the Claimant as diligent in other areas. It was one incident on one shift that he could have managed better. He was an employee with long service and a clear disciplinary record. The decision to uphold the dismissal at appeal stage was not within the reasonable range. In my judgement that rendered the whole dismissal unfair. The appeal stage is a very important stage as it is the last chance to get things right from either party’s perspective.4.25 I did not hear any evidence or submissions about remedy matters and make no findings in that regard. The parties will be written separately about the remedy hearing although they are encouraged to see if they can resolve the issue of remedy between themselves in the first instance, with the assistance of Acas. Approved by