Mr S ShielsClaimantMarks and Spencer plcRespondent
Before
Employment Judge ShotterDate 6 May 2026
JUDGMENT
[1]The claimant was not unfairly dismissed and his claim for unfair dismissal is not well-founded and is dismissed.[2]The claimant’s compliant of unauthorised wages is not wellfounded and is dismissed.[3]The respondent wrongfully dismissed the claimant, and claimant’s complaint of wrongful dismissal (notice pay) is well-founded and adjourned to a remedy hearing to take place by video listed for 2 hours on the 8 June 2026 before
REASONS
[1]In a claim form received on the 4 September 2024 following ACAS Early Conciliation that took place between12 July and 23 August 2024, the claimant complained that he had been unfairly dismissed and was seeking damages. The claimant also brings complaints of unpaid wages and wrongful dismissal (notice pay).[2]At the end of the liability hearing after all the witness evidence had been heard, the respondent applied to call w witness (Mrs Sims) to give evidence relating to what she was told by the payroll department about the overpayment of wages to the claimant and its deduction from the claimant’s notice pay. The respondent has not brought a counterclaim in respect of the overpayment, and there is no contemporaneous documentation from payroll. The respondent’s application was rejected for oral reasons given at the liability hearing, the thrust of which was that it was not in the interests of justice given the late production of the witness evidence and any supporting documents, especially bearing in mind the fact that the claimant is a litigant in person.[3]I had before me an agreed bundle consisting of 847 pages and four signed witness statements. The claimant was given breaks whenever he requested, and after the first day of the final hearing Mr O’Shaughnessy kindly agreed to provide the claimant with a summary of the law and copy of the EAT judgment in Craig Lamb V Tevba UK Ltd [2026] EAT 8. Credibility[4]I heard oral evidence from the claimant and on behalf of the respondent, Katie Stewart, academy team manager, who issued the claimant with a final written warning, Joseph McDonough (referred to as “Joe McDonough”), people team manager, who dismissed the claimant for misconduct and Molly Simms, deputy store manager, who heard the appeal. I took into account the written statements in addition to oral evidence and the documents to which I was taken.[5]Turning to the issue of credibility, on the balance of probabilities, I preferred the evidence given by the respondent’s witness supported by contemporaneous documentation, to the less than credible evidence given by the claimant. I found the claimant evasive when he gave oral evidence on cross-examination and on a number of occasions during this hearing when the claimant was asking the respondent’s witnesses questions and giving evidence on his own account, he stated that after the suspension had been lifted he was unable to attend work because there were no shifts for him, in the alternative, he could not return to work because he had requested a leave of absence from the store manager, which was authorised and paid and he knew the suspension had been lifted and was self-certifying for a week. Under cross-examination the claimant also accepted his suspension had come to an end on the 10 January 2024 and he was due to return to work on the 13 January 2024, reported sick by self-certifying thereafter, he did not provide sick notes.[6]I found Joseph McDonough to be a credible witness who gave straight-forward evidence and made concessions when it was not in the respondent’s interest to do so, such as conceding that the claimant was entitled to a payment in lieu of notice.[7]Turning to Kate Steward’s evidence, she gave honest credible evidence about why the final written warning was issued, The claimant did not cross-examine her on whether there it was manifestly inappropriate to issue the warning, and Kate Steward gave straight forward answers to numerous questions put to her by the claimant in cross-examination explaining why she genuinely believed he was guilty of the misconduct alleged, and decided to award the lesser sanction of a final written warning rather than proceed straight to dismissal. Agreed issues[8]The issues were agreed between the parties and discussed at the outset today, as set out below, on the basis that liability, the “no difference rule” in Polkey and contributory conduct would be dealt with followed by remedy if the claimant was successful. The issues the Tribunal will decide are set out below. 1. UNFAIR DISMISSAL1.1 What was the reason or principal reason for dismissal? The Respondent says the reason was conduct. The Tribunal will need to decide whether the Respondent genuinely believed the Claimant had committed misconduct.1.2 If the reason was misconduct, did the Respondent act reasonably or unreasonably in all the circumstances, including the Respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the Claimant? The Tribunal’s determination as to whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case. It will usually decide, in particular, whether:1.2.1 there were reasonable grounds for that belief;1.2.2 at the time the belief was formed the Respondent had carried out a reasonable investigation;1.2.3 the Respondent otherwise acted in a procedurally fair manner;1.2.4 dismissal was within the range of reasonable responses. 2. REMEDY FOR UNFAIR DISMISSAL2.1 If there is a compensatory award how much should it be? The Tribunal will decide:2.1.1 What financial loss(es) has the dismissal caused the Claimant?2.1.2 Has the Respondent proven that the Claimant failed to take reasonable steps to replace their lost earnings such as by failing to take reasonable steps to find another job?2.1.3 For what period of loss should the Claimant be compensated?2.1.4 Is there a chance the Claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason (Polkey v AE Dayton Services)?2.1.5 If so, should the claimant’s compensation be reduced? By how much?2.1.6 Did the ACAS Code of Practice on Disciplinary and Grievance procedures apply?2.1.7 Did the Respondent or Claimant unreasonably fail to comply with it?2.1.8 If so, is it just and equitable to increase or decrease any award payable to the Claimant? By what proportion up to 25%?2.1.9 If the Claimant was unfairly dismissed, did they cause or contribute to the dismissal by blameworthy conduct?2.1.10 If so, would it be just and equitable to reduce the Claimant’s compensatory award? If so, by what proportion?2.1.11 Does the statutory cap of either 52 weeks or £118,223 pay apply?2.2 What basic award is payable to the Claimant, if any?2.3 Would it be just and equitable to reduce the basic award because of any conduct of the Claimant before the dismissal? If so, to what extent? 3. NOTICE PAY3.1 What was the Claimant’s notice period?3.2 Was the Claimant paid for that notice period?3.3 If not, was the Claimant guilty of gross misconduct? 4. ARREARS OF PAY 4.1 Is the Claimant owed any arrears of pay?[9]I was referred to a number of documents in the written statements and evidence. Having considered the oral and written evidence and oral submissions presented by the parties (I do not intend to repeat all of the oral submissions but has attempted to incorporate the points made by the parties within the body of this judgment with reasons), I have made the following findings of the relevant facts resolving the conflicts in the evidence.
Facts
[10]ACAS early conciliation took place between the 12 July and 23 August 2024. The claim form was presented on the 4 September 2024.[11]The respondent is a large national high street retail company employing thousands of employees throughout the United Kingdom. It has two retail shops in Manchester city centre including the Spinningfields store.[12]The respondent had in place a number of the policies and procedures, including the Disciplinary Procedure and Disciplinary Rules, The relevant Disciplinary Policy dated 4 April 2024 provided a list of misconduct including unauthorised absence for a day/shift, “protracted unauthorised absence,” failing to follow company procedure such as the Sickness Absence Policy. Gross misconduct included “deliberate refusal to carry out a reasonable management instruction” and “protracted unauthorised absence.”[13]Under the heading “suspension” suspended employees were “expected to comply with reasonable instructions…during what would have been your working hours” failing which pay “may be stopped or recovered, in line with our unauthorised absence procedure.”[14]In accordance with the respondent’s Sickness Absence Procure published on 11 September 2024 but created on 2 September 2021, employees were required to submit an absence as a “time off request” in the respondent’s Time & Attendance App or call the sickness reporting absence line. The employee is required to “keep in regular contact with your line manager! and provide a Fit Note if the absence is more than 7 calendar days. An employee whose length of service of 3-6 years is entitled to full basic pay for a 12-week period. If contact with a manger is “inadequate” disciplinary action can be taken. Employees were required to remain in contact. The claimant’s employment[15]The claimant commenced his employment as a customer care assistant based at the Spinningfields store on the 22 September 2019. The claimant was provided with Terms and Conditions of Employment which reserved the right to change the claimant’s base store from the Spinningfields store and provided for repayment of monies not limited to overpayment of wages to be deducted from outstanding wages or money due.[16]In or around October 223 the claimant gave noticed of resignation, having obtained alternative employment elsewhere, which he had accepted. The claimant was offered 16 hours by the respondent which suited him, and he withdrew his notice. The claimant then worked for two employers.[17]On the 27 December 2023, the claimant attended an investigation meeting with team manager Rory Davies. The allegation was that the claimant had on 13 December 2023 eaten “a wrap that you did not purchase or get management authorisation to eat during your shift whilst on an unauthorised break. After a reasonable management request to stop eating the wrap and return to work you continued to eat before eventually returning to your work.” The second allegation was “on 17 December you took a sandwich from charity donations without payment or without asking management authorisation and eat this during your shift when not on your break.” The meeting was adjourned with no reference as to what would happen next. The claimant’s suspension[18]On the 30 December 2023, the claimant and a store manager, Steven Malone, disagreed over the allegations referred to above. Steven Malone completed an investigation report setting out the evidence (including CCTV footage) relating to the two allegations and referred to the argument he had with the claimant that day.[19]The claimant was suspended on full pay on the 8 January 2024. Allegation 1 was that “on 30 December 2024 (should be 2023) after admitting to eating yellow labelled stock on shift that you did not purchase, you deliberately refused to follow numerous reasonable management requests to stop eating this stock, which may be considered as gross misconduct…deliberate refusal to carry out a reasonable management instruction…allegation two – being disrespectful towards colleagues and management team. You called into question the capability of the management team and questioned the ability of the leadership team stating they were incompetent and unable to lead the store…This shows lack of inclusion for the wider store team and respect ot fellow colleagues.” The claimant told “your suspension may be lifted at any time and with immediate effect.” 10 January 2024 lifting the suspension[20]On the 10 January 2024, the claimant’s suspension was lifted, and he was told to return to work on the 13 January 2024.[21]The claimant self-certified a sickness absence and did not return to work on the 13 January 2024 or any date after that before being dismissed on the 26 June 2024, approximately 6 months after the suspension was lifted. It is undisputed a number of discussions took place with the claimant early on during the claimant’s absence when he explained he was experiencing mental health difficulties and did not feel safe returning to work until the disciplinary issue had been resolved. The claimant rejected the offer to be moved way from the manager in the Spinningfields’s store to the Manchester City Centre store within walking distance of the store in which the claimant worked. The claimant was informed Louise Hookway would be investigating.[22]The claimant emailed Steven Malone on the 12 January 2024 “while I understand your decision to lift my suspension, as I have previously discussed with yourself, I do not feel comfortable or safe working in an environment where my store manager calls me a thief…the ongoing investigation into these allegations will hopefully alleviate these feelings, but as this time I will not be returning to work for the sake of my mental health. I have spoken to a GP the evening who advised me to take a leave of absence…I will await further correspondence regarding a disciplinary hearing.” [My emphasis]. The claimant did not submit a sick note despite being provided with the necessary information and links to mental health support, for example, in the text sent on 23 January 2024 sent at 18.18.[23]In a second email to Steven Malone sent on the 12 January 2024 the claimant rejected the offer to work in another store. He wrote “I did not feel I have done anything that means I should be forced to work in another store, on a temporary or permanent basis, and so being presented this as a solution to make the problem go away seems inappropriate. Working in another store does not support me…the only priority in this matter is establishing the validity of the claims levelled against me and working towards a suitable resolution to these once verdict has been given. I have never taken sick leave, and I am unsure of the correct reporting procedure…”[24]The claimant raised an undated grievance in which he confirmed “I decided, for my own health and wellbeing, that I would continue to remain off work, in line with the suspension, until an outcome was arranged for the investigations. I do not feel safe coming to work in an environment where I can’t speak to me managers…I made it very clear that it was the investigation that was affecting my health and the resolution of the investigation that would facilitate my return from work.” The claimant referred to the four allegations as follows; “these are extremely serious allegations, I believe them to be false…I am currently unable to return to wok because no action is being taken with resolving these, leaving me in a stalemate…I have the right to come to work and feel safe” [my emphasis].[25]It is undisputed that the claimant did not return to work on the 13 January 2024 or after the expiry of the 7-day self-certification period, and he did not accept that the remaining absence should be covered by a MED3 sick note. The claimant continued to work 40-hours a week for the second employer, and I find that the claimant had taken the decision not to return to work in the knowledge that he was no longer suspended because he was unhappy the store manager at Spinningfields had levied “extremely serious” disciplinary allegations against him against a backdrop of a poor relationship where the claimant had previously taken the view that his performance had been unduly criticised. The claimant did not see why he should return to work, despite the clear management instruction that he should do so, preferring instead for his suspension not to be lifted in order that he would remain on full pay. As the claimant’s suspension had been lifted, the claimant took the decision not to return to work, nevertheless.[26]In an email sent on the 27 January 2024 at 12.10 to Amy Powell, a manager, the claimant referred to his absence and the request for a sick note as follows; “I am confused and concerned by your urgency for information…I am looking to obtain this…I’ve shared what I feel are the next best steps to assist with my ongoing situation and resulting condition. What information can you glean from a fit note that would change how you support my health? Should I be concerned?...if you are managing my absence to ultimately facilitate my return to work, I feel you should be privy to the full scope of the situation…otherwise correspondence from you makes things worse.” I find as a matter of fact from the contemporaneous correspondence that the claimant was fully aware the suspension had been lifted, and he was using a mental health condition as an explanation for not returning to work, he understood a sickness certificate was required and put up any argument he could not to provide the information. The claimant was not absent due to illness from his second job during this period and he continued to work 40 hours per week in it.[27]It is notable the claimant wrote in the 27 January 2024 email sent at 13.25 “By all rights I should not be absent at the present moment. It is not me that has created the situation that requires my absence…because of what is being investigated, and the fact I was suspended…Since I am not sure why my suspension has been lifted…it seems quite important to establish the reasons for this before we accept my resulting condition as the only reason why I can’t come to work” [my emphasis].[28]On the 2 February 2025 Amy Powell, who was managing the claimant’s absence, in a text message instructed the claimant that weekly contact should be made via Teams “as a minimum”. The claimant did not comply with this instruction. Louse Hookway’s investigation[29]On the 5 February 2024 Louise Hookway, people team manager, interviewed the claimant, who referred to the previous meeting with Rory Davies maintaining he had not been given the opportunity to “put across your thoughts” as recorded in notes. The interview was lengthy and the claimant had a great deal to say about the allegations referred to above, maintaining he had not stolen the food and was allowed to eat and drink whilst on duty. his understanding of the rules and poor relationship with his manager.[30]The undisputed notes of the 5 February 2024 meeting record the claimant complaining about his shifts being moved before Christmas, and “went to Faye, asked her to help me sort shifts put, I’m working this shift today, not sure if I’m meant to be in, not sure if you were ging to show up. If I hadn’t have shown up they would have to pay me as it’s my contract…I got my suspension documented…I was ready to walk out as I didn’t feel safe, having managers making accusations against me.”[31]The notes record Louse Hookway confirmed to the claimant he would be paid 16 hours suspension automatically, which the claimant did not question. The claimant confirmed he had received the suspension documented as follows; “…Sam reads the message from Stephen. Sam explained that he thinks SM lifted the suspension as he had a stocktake that weekend. SM states that after some consideration we can lift your suspension and your return will be 13 Jan. In line with suspension this will be supervised work. He stated I will get a hearing manager…I don’t understand, he was calling me a thief and now he wants me to come and do stocktake. There is no concrete timeline of when everything is going to be resolved. I immediately spoke to my colleague, they asked was I in on Sat. They said there’s nobody doing stocktake, so immediately my mind jumped to the conclusion…that he had lifted my suspension as he needs staff as that’s my contracted shift. So, I didn’t respond…he follows up on 12 Jan, asking me to confirm my understanding of the previous message…Sam reads the suspension notes put. This was clear and I had no issue with this; I know the allegations are serious. Had he suspended me pending the outcome of an investigation, which my mind went to Rory’s investigation…” [my emphasis].[32]The claimant was asked why he had not returned to work, and he explained “I feel under investigation from 4 separate allegations…I don’t feel safe going into an environment where Steven thought I was a thief, applying rules to me and only me…I would have gone back into a hostile bullying environment…explains he could have gone to another store, but again saying her is being accused of being a terrible worker…he doesn’t see how it is appropriate to send someone like this to another store…he doesn’t feel safe to transfer to another store.” The meeting was adjourned to the 6 February 2024 having finished at 19.44.[33]The second meeting started on 6 February 2024 at 17.40 and the notes reflect the claimant explained his position in detail and was asked how he felt working in Spinningfields to which the claimant referred to being “threatened with withheld pay as haven’t produced a sick note” and “as long as I get a formal retraction of theft…the reason I haven’t come back to work is I have been waiting a process. I want the malpractice identified, observed and the people coached” [my emphasis] confirming he did not feel comfortable working in another store. The meeting was adjourned at 21.03.[34]In an email sent on the 7 February 2024 the claimant confirmed to Louise Hookway “I do not believe that my inability to attend work is because of my health, in that the discrimination and bullying I have faced…is self-evident and currently under investigation and I am working to engage with the process that looks to resolve this. If that had been handled promptly…I believe that it is reasonable to think I would not be absent from work…I understand that M&S may take action because I have not submitted this note, such as withholding pay. I would hope that M&S would see why doing this would be irresponsible and unreasonable, and they would instead continue to honour my contract until a resolve is reached, but if not, I ‘d likely to discuss this as a consequence of the inaction over the past 6 weeks and hopefully resolve it from there. My absence from the store at this time is a consequence of how long M&S have taken to move on with this process, and my store manager making me unsafe for me to attend work…Submission of a sick note suggests I am entirely liable for my absence…” [my emphasis].[35]It is not disputed the claimant agreed to submit sick notes but never did, and this is reflected in a number of emails, including the email sent by the claimant to Louise Hookway on the 9 February 2024 where the claimant referred to his inability to work being due to the handling of the disciplinary investigation and referred to a total “12 day suspension” when the claimant was fully aware his suspension had been lifted, he was expected to return to work and it had been made clear that if he did not return sick notes should be provided. It is not disputed that the claimant, throughout the entire period, continued to work 40 hours per week for the second employer.[36]Louise Hookway produced an investigation report having conducted interviews with six witnesses including the claimant and viewed CCTV on the 13 and 17 December 2023. Each of the individual allegations were carefully dealt with, and it records the claimant’s responses to the CCTV footage and recording the mitigation referenced by the claimant and set out in great detail concluding allegation 1 and 3 should proceed to a disciplinary hearing for gross misconduct but allegation 2 should not as “I find no case to answer for the theft.” The claimant still did not return to work.[37]The claimant was invited to a disciplinary hearing on the 25 March 2024 to answer two allegations referenced in the investigation report, a copy of which was provided. The ACAS Code of Practice was complied with in the invite letter written by Katie Steward and so I find. Disciplinary hearing 25 March 2024 and 2 April 2024[38]I have read the notes taken at the 25 March 2024 disciplinary hearing. It is clear the claimant was given the opportunity to put forward his defence and comment on the evidence provided as attached to the invite letter, including witness statements. The hearing started at 17.30 and finished 20.40 before being adjourned to 2 April 2024. The hearing notes are lengthy and detailed, which included the claimant’s mitigation. After an adjournment Katie Steward issued a final written warning “based on the deliberate refusal to carry out a reasonable management instruction on several occasions and continued to eat during your paid working hours after being asked to refrain from this and only eat before or after your shift or during an allocated unpaid break.”[39]Katie Steward held a genuine belief based upon the reasonable investigation she had carried out over two disciplinary hearings and the investigation report completed by Louse Hookway, that the claimant on his own admission, had been asked by managers to stop eating which he did not adhere to because he disagreed with the reasons given by management. Katie Steward genuinely believed the claimant’s behaviour had damaged trust, he had shown a “disregard for authority” and was guilty of gross misconduct. Objectively assessed, Katie Steward was entitled to reach the view she did based on the evidence before her, and the fact that other managers had been involved in an investigation and suspension did not undermine the objectivity and thoroughness in which Kate Steward approached the evidence before her, including the claimant’s arguments. This was not a case where Louse Hookway attempted to formulate her investigation report to coincide with Steven Malone’s criticism of the claimant so as to ensure he was dismissed, and it was not the case that Kate Steward approached the issue in a predetermined way with the intention of supporting Steven Malone in respect of his dealings with an problematic employee. It is apparent from the contemporaneous documents both the investigation and disciplinary hearing were conducted at arm’s length, with thoroughness and objectivity, the claimant was listened to and the final written warning issued was thought to be appropriate in the circumstances. Both allegations could have resulted in dismissal and yet Katie Steward had not considered that sanction to be an appropriate one considering the claimant’s length of service and employment record, satisfied there would be no repeated misconduct towards managers in the future.[40]Katie Steward informed the claimant he should send a copy of his fit note to Amy Powell, the manager dealing with his absence, as the claimant had still not returned to work or provided a copy of any fit notes.[41]The disciplinary outcome was confirmed in a letter dated 30 April 2024 which recorded allegation one as follows: “that on a number of occasions between October 2023 and December 2023 you have chosen not to follow reasonable management instruction, ignore repeated requests by senior colleagues to behaviour [behave] in line with expected standards and challenged management authority and decision making. Namely, that you continued to eat during your paid working hours, after being asked to refrain from this and only eat before or after your shift or during an allocated unpaid break…”[42]With reference to allegation 2 Katie Steward wrote: “that you have behaved in a disrespectful and uncooperative manner towards colleagues and management, namely that you continued to challenge management authority, referred to management as incompetent and suggested they are unable to follow company policy“ on a number of occasions between October 2023 and December 2023 the claimant’s argument with Stephen Malone was admitted by the claimant.[43]Katie Steward referred to exploring with the claimant “any relationship issues with management prior to this…and you said you didn’t. However, I have considered that you have been absent from work for a long period of time and refused the support and adjustments offered by the investigating manager to enable you to return to work and you have failed to fully engage with the manager appointed to support your wellbeing and absence from work…you talked about being suspended by the store manager and explained that since the suspension being lifted you have been absent from work explaining ‘…I was off sick…I was told to get a sick note…I would have come in if I felt safer to do so.”[44]The claimant did not say he believed he was still under suspension and in receipt of full pay or that “a manager had authorised time off and I was paid for this” in contrast to the claimant’s oral submissions at this liability hearing, which undermined his credibility further. Katie Steward’s understanding was that the claimant remained absent and she wrote “I encouraged you to talk to Amy Powell about the reasons you are off work and provide her with the sick note the doctor gave you so she can support your well being and explore other reasonable adjustments.”[45]The final written warning was live on the claimant’s file for 12 months.[46]The claimant appealed setting out grounds that were covered in the original disciplinary hearing, which included a reference to the suspension “due to risk of stock” and allegation of theft “never formally retracted” when it had been at investigation stage.[47]The appeal was never heard as the respondent took the view that there was nothing new raised in the grounds of appeal. However, the claimant does not dispute that points raised by him were dealt with in the grievance outcome referred to below and heard by a different manager.[48]The claimant did not return to work and continued to be absent without authority until his dismissal. The claimant continued to be paid by the respondent, and he also worked 40 hours per week for another employer. The email exchange following the claimant indicating to Amy Powell in an email sent on the 27 March 2024 at 17.41.[49]In the email referred to above the claimant wrote “I’ve had my hearing now…I’m going to speak with my GP on the 5 April and take some time for my own health…I plan to return to work on…24 April.”[50]In an email sent on the 28 March 2024 Amy Powell sent the claimant a link to PAM assist and the well-being hub.[51]In an email sent by the claimant on 4 April 2024 in response to an earlier one received by Amy Powell seeking to arrange a meeting, he wrote “I am keeping as well as I can” and referred to meeting the GP the next day.[52]In a note of a conversation held on the 4 April 2024 taken by Amy Powell (which is not disputed) the claimant is reported as describing his health condition as “stress” and saying “… it was M&S. The working environment did not feel safe, the delay of his disciplinary process and not understanding why the disciplinary was taking place…it is the stress of the process and the working environment during the suspension – which is the 1st time that has ‘prevented’ him to attend work…He mentioned that stress had an impact on how he lives his ‘day-to-day…he said he had days when he could not get out of bed, has had mental ramification’ did not come into work because it felt ‘oppressive’ and ‘felt threatened to come into work.” The claimant confirmed that he had a sick note “and is looking to get it extended” and his doctor’s appointment was “scheduled for three weeks now.”[53]The claimant confirmed that a mitigating factor was he believed the suspension lasted until the 30 April 2024 when the investigation concluded, when he was paid for the entire period to mid-April despite being told “if I did not submit a fit note I would not be paid but I was until the middle of April….during that time I was advised to report my absence as sickness which is what I did and was requested for a relevant document which would void the reasons for my absence. I was told at the time that failure to provide this would result in my absence being unauthorised and unpaid…in all this time I have been allocated time off which I have not requested.” When asked for the sick note the claimant’s response was “he said he was ‘reluctant to’ and ‘did not see the benefit’ to send documentation through.” The claimant was told in no uncertain terms that he was required to send a fit note, and the claimant is reported as responding; “he only wants to provide a sick note retrospectively. Only when he feels it is relevant when proceeding with the next stages of the grievances process.” Amy Powell insisted on the claimant providing a fit note, pointing out he was on unauthorised leave, which the claimant understood, and once the fit note was provided “we will look to invite him to an illhealth meeting.” Far from understanding that the claimant was to return to work and that the respondent should put in measures for his return, Amy Powell’s genuinely believed from information provided to her by the claimant that he was not ging to return to work, the claimant was to continue being absent due to his illhealth and she was waiting for him to send in the sick note which never arrived.[54]In a WhatsApp message sent on the 7 April 2024 to Amy Powell following the meeting held earlier, the claimant complained about his wages, arguing he should be paid for preparing for meetings and the SSP allowance referring to the time “I’ve been unable to attend my normal place of work.”[55]Amy Powell responded asking for a copy of the sick note, which the claimant refused to provide on the 8 April 2024 stating, “the medical consensus seems to be entirely in line with what M&S is doing…so I don’t see how forwarding this will change M&S’s behaviour in this matter.”[56]On 15 April 2024 Amy Powell emailed the claimant “I am still extremely concerned that you have been absent from your role and have not completed your contracted hours since 14/01/24. As I have explained to you on numerous occasions, you are required to provide a medical certificate to cover absences of more than 7 days” citing company policy…You have reported your absence from work as sickness and you have informed the investigating and hearing manager that you have a medical certificate, therefore I require you to provide the medical certificate to cover your absence from 21/01/24 by the end of your planned shift tonight at 9.30….should you fail to follow this reasonable management request and adhere to company policy, I will be taking further action in line with the company’s disciplinary policy. “ Reference was made to the claimant failing to follow the sickness absence policy, unauthorised absence, and deliberate refusal to carry out a reasonable management instruction “are all examples of gross misconduct.”[57]The claimant did not return to work, did not provide the sick note and wrote in response on the 15 April 2024 “If you can make an acknowledgment of this issue, such that the sick note is not considered binding or relevant if it is found to be the fault of M&S, I’d be happy to evidence this to you…otherwise I consider this a threat to take punitive action…I have not attended work because it is unsafe to do so, This is not absence for sickness…your request for my sick note is not reasonable, as it constitutes a threat, harassment and fails to understand the reasons for my absence.” It is notable that the claimant did not say he continued to be suspended and made no reference to an imminent return to work on the 24 April 2024. The thrust of the email was that he would not be returning to work and would not provide a sick note because the claimant felt it was not appropriate. In short, the claimant was fully aware that his absence was unauthorised. The remain emails set out in the bundle dealing with this matter (which I do not intend to record here) reflect the claimant’s prevarication even in the face of being informed by Amy Powell on the 16 April 2024 that an investigation into his absence would take place.[58]At no stage did the claimant repeat his intention to return to work on the 24 April 2024, and the information he provided to Amy Powell undermined his original intention, making it clear to her that he was unwell, had an appointment to see the doctor in late April 2024 and intended to obtain an extension to his sick note, which would be postdated. I find as a matter of fact that it was reasonable for Amy Powell to conclude the claimant was off sick and insist on a sick note being provided. The claimant’s evidence at this liability hearing to the contrary was not credible, and undermined by the contemporaneous documents, and I find as a matter of fact that(a) the claimant intended to remain off work,(b) without providing the respondent with a fit note, (c ) aware that his absence was unauthorised, (d) accepting payment of salary in the knowledge that he was not entitled to the payment and (e) with no intention of returning to work even when he was under investigation and facing disciplinary action for unauthorised absence. Investigation into the claimant continuing absence[59]Clare Carey carried out an investigation into the claimant’s absence from 13 January 2024 and an allegation that the claimant had been absent from work without authorisation since 22 January 2024. Amy Powell, Louise Hookway, and Steven Malone were interviewed. The claimant was not and the report produced recorded “you declined the opportunity to take part in the investigation.”[60]In oral evidence on cross-examination and in oral closing submissions the claimant denied he had declined the opportunity, without referring to any contemporaneous supporting evidence. I did not find the claimant’s version of events credible.[61]In Clare Carey’s report she recorded “I’ve stablished that you self-administered your absent on T&A on the 12 January 2024 under the option mental ill health…I asked you to attend an interview to understand your version of events and you declined the opportunity to meet. You explained that you wanted to complete an existing grievance case you were going through before I started the investigation. I made several attempts to engage with you in relation to the allegations I am investigating however you refused to talk to me about your absence from work. During a Teams exchange with myself you stated you did not want to liaise with me until your grievance was concluded, because you felt your grievance would prove your absence was not unauthorised and is not sickness related. However, it is clear your absence was not pre-agreed…you have repeatedly advised that you are off work sick, referred to GP advice and sick notes but failed to provide these. You have declined all offers of reasonable adjustments to support you to return to work, including the offer of another store to remove all the issues you detail about feeling unsafe in work.”[62]When asked to provide a copy of the fit note, the claimant agreed to do so providing conditions were met. The fit notes were not provided. In an email sent on the 11 June 2024 the claimant wrote to Amy Powell referring to his grievance “I have been suspended from 30 December 2023 – 30 April 2024” when he knew this was not the case. The claimant wrote “the decision to revoke the suspension placed me in danger of discrimination, for reasons that were unjustified and defamatory. My decision not to return to work for my own safety was reasonable and justified…” The Disciplinary Hearing 24 June 2024[63]The respondent selected Joe McDonough to hear the disciplinary allegations against the claimant. He had no previous dealings the claimant. and had access to all of the information referred to above and in the hearing bundle pre-appeal.[64]The letter of invitation to a disciplinary hearing on the 13 June 2024 complied with the ACAS Code of Practice, the allegation against the claimant was that he had been absent from work without authorisation since January 2024, had failed to provide a clear and accurate reason for his absence from work, and failed to maintain reasonable and agreed levels of contact with the manager appointed to manage and support his absence [Amy Powell] and failed to provide a medical certificate showing he had been signed off work although he had referenced such a certificate on several occasions.” The letter made it clear that the allegations were serious and could result in the claimant’s dismissal. The claimant was provided with a disciplinary hearing bundle that included a number of documents in addition to witness statements and the investigation report.[65]The disciplinary hearing complied with the ACAS Code of Practice and Joe McDonough gave the claimant the opportunity to put forward his explanation, having taken a view that whilst the claimant did not take part in the investigation there was nothing stopping the claimant giving the same explanation he would have given at investigation stage during the disciplinary hearing. The claimant as before, had chosen not to be accompanied.[66]The hearing started at 18.00 and finished 21.13.[67]During the hearing, the claimant stated, “I was given a suspension document that said I was suspended until the investigation completed.” Reference was made to the suspension being listed and the claimant failing to return to work on the 13 January at 11.45am to which the claimant responded “I considered this is not a raising of my suspension and if Steven understood while I was off work, he could then have chosen to formally revoke my suspension and understand my reasons but instead I was given advice on how to support a sickness absence.”[68]The claimant confirmed he had sick notes for 4 months which had not been provided to the respondent and “there is no point at which where I took a leave of absence in line with the fit note and the medical advice I sought…I felt it would be wrong to submit the sick note as it would be gross misconduct to submit a sick note in error. It didn’t apply to the circumstances that were taking place.”[69]When asked why the claimant had not returned to work since 30 April 2024 the claimant’s response was “I have not been given any shifts, since January my shifts have been removed, on 24 April I shared my intention to return to work…I said to Amy on the 27 March that I’ve had my hearing and my outcome and intended to work on 24 April. Amy didn’t address that and said I’d speak to my GP and Amy offered me health and well-being support.” When asked what the claimant had done to re-engage with work and who had authorised the claimant’s absence from 30 April 2024, the claimant’s response was “no one but whoever then put my time off into the system” and when asked if it was unauthorised the claimant replied, “Yes I suppose it is.”[70]When asked what actions the claimant had taken to resolve a return to work he responded “I’ve had an ongoing grievance with Joshua and that finished on the 30 May. Joshua suggested a number of outcomes…a meeting with Steven, a retraction of the allegation of theft…” The claimant confirmed he had told Amy Powell on 27 March and Kate Steward “when we spoke in person with my outcome, as well as in my grievance” about a return to work.[71]With reference to the allegation regarding reasonable contact the claimant did not think it was his responsibility, and it was for management to contact him to facilitate a return to work.[72]The claimant confirmed he had been paid in full until the end of April 2024 without being required to provide a medical certificate, and in May 2024 he had answered an on call from the emergency call out team and had not attended the store. As the respondent took the view the claimant remained off sick, the claimant was removed from the on-call list.[73]The hearing was adjourned to what would have been the claimant’s next shift, the claimant had not booked holidays and yet he was out of the country. It was agreed the hearing would proceed remotely.[74]Part one of the disciplinary hearing finished at 21.13.[75]The disciplinary hearing reconvened on 26 June 2024, and the claimant confirmed he had not been given any clear document about a return to work and “I feel that I was right to stay off…” maintaining his suspension had not been lifted because he was “a stock risk” until an investigation concluded he was not. In short, the claimant’s position reflected the same arguments put forward at this liability hearing, namely he could not return to work until his name had been cleared from the allegation of theft (despite the allegation being dropped at investigation stage) and without documentation it was appropriate to stay off work and he had not been given any instructions about when to return to work.[76]I find Joe McDonough held a genuine and reasonable belief based on the investigation and evidence before him, that the claimant had not been suspended until 30 April 2024, the claimant disagreed with the lifting of his suspension which he fully understood and knew it had been lifted having been sent and read the Teams message on 27 January 2024.[77]Joe McDonough having considered the claimant’s explanation that from 30 April 2024 the claimant was waiting for management to facilitate his return to work, held a genuine and reasonable belief based on the investigation, contemporaneous documents, and witness evidence that Amy Powell and Louise Hookway had attempted to support the claimant in his return to work and he had rejected all attempts.[78]Joe McDonagh held a genuine and reasonable belief based on a reasonable investigation that the claimant had been instructed to contact the respondent on Teams weekly by Amy Powell and he did not accept the claimant’s explanation that he had not.[79]Joe McDonagh held a genuine and reasonable belief that the claimant had never submitted a medical certificate despite having reported his absence as a sickness absence, following management requests.[80]Joe McDonagh found the claimant’s behaviour amounted to misconduct in that he failed to follow the Sickness Absence Policy, had made inadequate contact when covered by a medical certificate and had been absence without authority from the 22 January 2024. Joe McDonough concluded the claimant’s behaviours amounted to misconduct and as he had a live warning for misconduct on his file, dismissal was the appropriate sanction. Joe McDonough took the view that reissuing the final written warning in the light of the claimant’s length of service, was not appropriate in the specific circumstances of the claimant’s case including his intentional act of not returning to work when according to the claimant, he still considered himself suspended (when he clearly was not) and that his absence was not attributable to any mental health sickness.[81]The effective date of termination was the 26 June 2024. The claimant was informed by Joe McDonough that he would receive 4 weeks’ pay in lieu of notice pending any repayment. The outcome was set out in a letter dated 9 July 2024 which ran to 3-pages and gave a detailed explanation for the decision. In the letter Joe McDonough wrote “You have failed to provide a clear and accurate reason for your absence from work…you have failed to maintain reasonable and agreed levels of contact…you have failed to provide the medical certificate showing you have signed off work, which you have referenced on several occasions…”[82]On the 9 July 2024, the claimant appealed by email and his appeal was dealt with by Molly Sims, deputy store manager, who was provided with all the relevant documentation including the claimant’s earlier grievances and appeal against grievance outcome. Molly Sims had no previous dealings with the claimant. The invite to the appeal hearing on 7 August 2024 complied with the ACAS Code of Practice. Appeal hearing 7 August 2024.[83]At the appeal hearing the claimant’s position was that his suspension was not over until the 30 April 2024, he acknowledged Amy Powell had requested weekly contact and that he felt “limited” because his suspension imposed a “gagging order” and that as he was under suspension there was no requirement for him to provide a sick note. There was a discussion about the claimant’s grievances and the “overpayment” of wages. The notes taken at the appeal hearing were agreed.[84]On the 11 August 2024, the claimant sent additional evidence, including sick notes.[85]Molly Sims carried out further investigation including the overpayment of salary owed by the claimant which was written off as a gesture of goodwill.[86]Molly Simms held a genuine and reasonable belief that the suspension had been lifted, and the claimant could not have believed he was being paid on suspension after but accepted the overpayment of the claimant’s wages was a complicating factor and internal training was necessary. Molly Simms did not accept the claimant’s explanation for failing to return to work was attributable to his shifts not being visible in the schedule, Amy Powell had regularly tried to contact the claimant, and he should have clearly stated when he was prepared to return to work. The claimant had not maintained regular contact and Amy Powell was criticised “ as I felt she allowed Mr Sheils to control the situation.” Finally, with reference to the failure to provide a medical certificate, Molly Simms agreed with Joe McDonaugh that as he insisted the absence was not due to sickness and this is why he had not provided the medical certificate, there was a protracted period of unauthorised absence.[87]Finally, with reference to the claimant’s conduct appeal to the final written warning that remained live of his file at the time of dismissal, Molly Simms concluded that it had not progressed because he had not provided a viable ground for an appeal as he was attempting to appeal the theft allegation which did not go forward to a disciplinary hearing.[88]The appeal outcome was set out in a letter dated 1 October 2024 which ran to a detailed 4-pages of explanation for dismissing the claimant’s appeal, including the following; 1. “It is clear from the messages exchanged between you and Steve Malone that you[r] suspension was lifted, it was not just a proposal.” 2. “When asked about the shifts after the 24 January you said, ‘I have no shift, they were being deleted…’ You explained to me that had you returned to work it would have been a ‘toxic environment,’ I asked you if you had been offered another place of work, you confirmed that you had. I believe the appropriate offer had been made to support your return to work following the lifting of your suspension.” 3. “You explained that you continued to receive pay after the 24 January and the 30 April…You made it clear throughout this process that you were not wiling to return to work until the misconduct proceedings had been resolved…Regardless of what was shown in your working schedule you did not intend to return to work…even after suspension had been lifted on 15 January…You chose not to return to work despite being offered an alternative location and different leadership team, as offered to you by Steven Malone, as you wanted misconduct proceedings resolved first.” 4. “In your letter of appeal, you acknowledged that Amy Powell--- requested weekly contact. You felt this was unreasonable as “there is noting useful I could share You didn’t understand what conversation I would have with Amy weekly.” Law and applying the law to the facts.[89]Mr O’Shaunessy provided the claimant with a document titled “Respondent’s Statement of The law” in good time for oral submissions to be made, which I have taken into account and not repeated here other than to confirm that I acknowledge the wellknown principles set out in British Home Stores v Burchell [1978] IRLR 379, Iceland Frozen Foods Ltd v Jones [1982] IRLR 439, EAT including the more recent decision of the EAT in Lamb v Teva UK Limited [2026] EAT 8.[90]Section 94(1) of the Employment Rights Act 1996 (“the 1996 Act”) provides that an employee has the right not to be unfairly dismissed by her employer. Section 98(1) of the 1996 Act provides that in determining whether the dismissal is fair or unfair, it is for the employer to show the reasons for the dismissal, and that it is a reason falling within section 98 (2) of the 1996 Act. Section 98(2) includes conduct of the employee as being a potentially fair reason for dismissal.[91]Section 98(4) provides that where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal if fair or unfair (having regard to the reasons shown by the employer) depends on whether in the circumstances (including the size and administrative resources of the respondent’s undertaking) the employer acted unreasonable or reasonably in treating it as a sufficient reason, and this shall be determined in accordance with equity and the substantial merits of the case.[92]Where the reason for dismissal is based upon the employee’s conduct, the employer must show that this conduct was the reason for dismissal.[93]The Court of Appeal in British Leyland (UK) Ltd v Swift [1981] IRLR 91 set out the correct approach: “If no reasonable employer would have dismissed him then the dismissal was fair. But is a reasonable employer might reasonably have dismissed him, then the dismissal was fair…in all these cases there is a band of reasonableness, within which one employer might reasonably take one view and another reasonably take a different view.”[94]Boys and Girls Welfare Society v McDonald [1996] IRLR 129, the EAT clarified that there is a neutral burden of proof when it comes to establishing whether the Burchell test has been satisfied. If the tribunal finds that the Burchell test is satisfied, it will then consider whether the decision to dismiss fell within the range of reasonable responses available to a reasonable employer in the circumstances. The tribunal’s findings in this regard will depend on the individual circumstances of the case.[95]The range of reasonable responses test applies both to the decision to dismiss and to the investigation: Sainsburys’ Supermarket v Hitt [2003] IRLR 23. This means that the tribunal has to decide whether the investigation was reasonable, not whether it would have investigated things differently.[96]It is irrelevant whether or not the tribunal would have dismissed the employee if it had been in the employer’s shoes: the tribunal must not substitute its view for that of the employer: Foley v Post Office; Midland Bank plc v Madden (above) The effect of the live final written warning[97]Mr O’Shaunessy submitted that in terms of ‘totting up’ dismissals the general rule is that a Tribunal should not decide whether a final warning was reasonably given but is entitled to satisfy itself the warning was given in good faith with prima-facie grounds. If it was manifestly inappropriate the Tribunal can take that into account when determining a later dismissal relying on the warning – Co-operative Retail Services Ltd v Lucas [1993] EAT 145/93.[98]In Wincanton Group PLC v Stone [2012] UKEAT/0011/12/LA at [37] the EAT provided guidance on the approach the Tribunal should take in considering the relevance of an earlier warning: 37. We can summarise our view of the law as it stands, for the benefit of Tribunals who may later have to consider the relevance of an earlier warning. A Tribunal must always begin by remembering that it is considering a question of dismissal to which section 98, and in particular section 98(4), applies. Thus, the focus, as we have indicated, is upon the reasonableness or otherwise of the employer’s act in treating conduct as a reason for the dismissal. If a Tribunal is not satisfied that the first warning was issued for an oblique motive or was manifestly inappropriate or put another way, was not issued in good faith nor with prima facie grounds for making it, then the earlier warning will be valid. If it is so satisfied, the earlier warning will not be valid and cannot and should not be relied upon subsequently. Where the earlier warning is valid, then:(1) The Tribunal should take into account the fact of that warning.(2) A Tribunal should take into account the fact of any proceedings that may affect the validity of that warning. That will usually be an internal appeal. This case is one in which the internal appeal procedures were exhausted, but an Employment Tribunal was to consider the underlying principles appropriate to the warning. An employer aware of the fact that the validity of a warning is being challenged in other proceedings may be expected to take account of that fact too, and a Tribunal is entitled to give that such weight as it sees appropriate.(3) It will be going behind a warning to hold that it should not have been issued or issued, for instance, as a final written warning where some lesser category of warning would have been appropriate, unless the Tribunal is satisfied as to the invalidity of the warning.(4) It is not to go behind a warning to take into account the factual circumstances giving rise to the warning. There may be a considerable difference between the circumstances giving rise to the first warning and those now being considered. Just as a degree of similarity will tend in favour of a more severe penalty, so a degree of dissimilarity may, in appropriate circumstances, tend the other way. There may be some particular feature related to the conduct or to the individual that may contextualise the earlier warning. An employer, and therefore Tribunal should be alerted to give proper value to all those matters.(5) Nor is it wrong for a Tribunal to take account of the employers’ treatment of similar matters relating to others in the employer’s employment, since the treatment of the employees concerned may show that a more serious or a less serious view has been taken by the employer since the warning was given of circumstances of the sort giving rise to the warning, providing, of course, that was taken prior to the dismissal that falls for consideration.(6) A Tribunal must always remember that it is the employer’s act that is to be considered in the light of section 98(4) and that a final written warning always implies, subject only to the individual terms of a contract, that any misconduct of whatever nature will often and usually be met with dismissal, and it is likely to be by way of exception that that will not occur.[99]In Davies v Sandwell MBC [2013] EWCA Civ 135 the Court of Appeal held:22. First, the guiding principle in determining whether a dismissal is fair or unfair in cases where there has been a prior final warning does not originate in the cases, which are but instances of the application of s. 98(4) to particular sets of facts. The broad test laid down in s.98(4) is whether, in the particular case, it was reasonable for the employer to treat the conduct reason, taken together with the circumstance of the final written warning, as sufficient to dismiss the claimant.23. Secondly, in answering that question, it is not the function of the ET to re-open the final warning and rule on an issue raised by the claimant as to whether the final warning should, or should not, have been issued and whether it was a legally valid warning or a “nullity.” The function of the ET is to apply the objective statutory test of reasonableness to determine whether the final warning was a circumstance, which a reasonable employer could reasonably take into account in the decision to dismiss the claimant for subsequent misconduct.24. Thirdly, it is relevant for the ET to consider whether the final warning was issued in good faith, whether there were prima facie grounds for following the final warning procedure and whether it was manifestly inappropriate to issue the warning. They are material factors in assessing the reasonableness of the decision to dismiss by reference to, inter alia, the circumstance of the final warning.[100]The Court of Appeal further held the term ‘manifestly inappropriate’ illustrates a restrictive approach with a higher threshold and narrow meaning [38], adding where there has been no appeal against a final warning, or where an appeal has been launched but not pursued, there would need to be exceptional circumstances for going behind the earlier disciplinary process and in effect re-opening it [38].[101]The question for the Tribunal is the reasonableness of the decision to dismiss in the circumstances of the case, having regard to equity and the substantial merits of the case. The Tribunal will not substitute its own view for that of the respondent. In order for the dismissal to be fair, all that is required is that it falls within the band of reasonable responses open to employer. It is necessary to apply the objective standards of the reasonable employer – the “band of reasonable responses” test – to all aspects of the question of whether the employee had been fairly dismissed, including whether the dismissal of an employee was reasonable in all the circumstances of the case.[102]The test remains whether the dismissal was within the range of reasonable responses and whether a fair procedure was followed. Section 98 (4) provides that where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal if fair or unfair (having regard to the reasons shown by the employer) depends on whether in the circumstances (including the size and administrative resources of the respondent’s undertaking) the employer acted unreasonable or reasonably in treating it as a sufficient reason, and this shall be determined in accordance with equity and the substantial merits of the case. Wrongful dismissal[103]The term “gross misconduct” connotes the most serious types of misconduct, such as theft or violence, warranting instant dismissal. It will be conduct that “so undermines the relationship of trust and confidence ... that [the employer] should no longer be required to retain [the employee] in his employment” (Neary v Dean of Westminster [1999] IRLR 288).[104]The sole question is whether the terms of the contract, express or implied, have been breached. The employee will have a claim in damages if the employer, in dismissing, breached the contract and caused loss. Conclusion: applying the facts to the legal principles.[105]With reference to the first issue, namely, was the claimant dismissed, it is undisputed he was dismissed on the grounds of misconduct.[106]With reference to the second issue, namely. what was the reason or principal reason for dismissal, the reason was conduct, potentially a fair reason for the claimant’s dismissal, pursuant to s.98(2)(b) ERA 1996. For the reasons stated above, I am satisfied the respondent genuinely believed the claimant had committed misconduct.[107]With reference to the third issue, namely, did the respondent act reasonably or unreasonably in all the circumstances, including the Respondent’s size and administrative resources, in treating that as a sufficient reason to dismiss the claimant, I found that it did taking into account the entire disciplinary process, the contradictions in the claimant’s evidence at various times during the disciplinary process, and the clear evidence before the dismissing and appeal officer of the claimant’s wrongdoing as recorded above, which I do not intend to repeat. I am satisfied that the claimant had no intention of returning to work after his suspension had been lifted, and he was unable to rely on a sickness absence because he was working 40 hours a week elsewhere for another employer.[108]The claimant remained in receipt of full pay following the suspension knowing full well he was not suspended and was expected to submit a fit note, failing which he was on a unauthorised absence and not entitled to be paid. It is notable that nowhere in the bundle is there any documentary evidence pointing to the claimant raising a query over why he was being paid in these circumstance. Further, the claimant’s explanation that his manager had authorised the absence and pay was undermined by the contemporaneous documents and the evidence given on behalf of the respondent. The claimant knew very well he was not entitled to be paid and throughout his unauthorised absence controlled the process to ensure that the status quo remained until the respondent noticed the claimant had been overpaid for a lengthy period of time which resulted in it demanding re-payment and then partly offsetting the money the claimant owed against the payment in lieu of notice.[109]For a dismissal to be procedurally fair in a case where the alleged reason for dismissal is misconduct, Lord Bridge in Polkey – v- A E Dayton Services Limited [1981] ICR (142) HL said that the procedural steps necessary in the great majority of cases of misconduct is a full investigation of the conduct and a fair hearing to hear what the employee has to say in explanation or mitigation. It is the employer who must show that misconduct was the reason for the dismissal and must establish a genuine belief based upon reasonable grounds after a reasonable investigation that the employee was guilty of misconduct – British Home Stores Ltd v Birchell [1980] CA affirmed in Post Office v Foley [2000] ICR 1283 and J Sainsbury v Hitt [2003] C111. In short, the Tribunal is required to conduct an objective assessment of the entire dismissal process, including the investigation, without substituting itself for the employer, which I have carried out in the case of Mr Sheils, satisfied that the legal principles were met at investigation, disciplinary hearing, and appeal stage. In addition, with the exception of the procedure regarding the respondent’s failure to set down an appeal with regards to the final written warning, the ACAS Code of Procedure was complied with.[110]In oral submissions the claimant argued that the final written warning had not been given in good faith, relying on the respondent’s failure to list his appeal and deal with it following a grievance raised by the claimant. The claimant’s case is that the appeal should have been heard. I agree with the claimant on the basis that even if the respondent took the view that the claimant was appealing an allegation that had been withdrawn at investigation stage (the alleged theft) the appeal should still have taken place and it was not sufficient for it to have been dealt with at a grievance hearing.[111]The claimant also submits that his dismissal was unfair because he had indicated to Amy Powell in an email sent on the 27 March 2024 at 17.41.32 that he intended to return to work on the 24 April 2024, and it was the respondent who was at fault because no arrangements were made for his return. I have set out some of the emails and WhatsApp exchanges above, which undermines the claimant’s assertion that he intended to return to work on the 24 April 2024. I found on the balance of probabilities that there was no such intention on the part of the claimant, who continued to remain off work even when investigated for unauthorised absence. The claimant refused to provide any sick notes on the basis that they were not relevant to his absence. On a clear reading of the contemporaneous documents, the claimant was fully aware he was no longer suspended and did not want to return to work for a number of reasons, not least he did not see why he should comply with his manager’s request against the backdrop of a disciplinary process the claimant did not agree with. Throughout the period in question, as admitted by the claimant during cross-examination, he was working 40 hours a week for another employer. The final written warning[112]Kate Steward gave honest credible evidence about why the final written warning was issued, instead summarily dismissing the claimant for gross misconduct at that stage. She decided on the more lenient sanction of a final written warning, and there was no satisfactory evidence before me to suggest the final written warning was not issued in good faith. I looked at the fact the claimant’s appeal was not dealt with at an appeal hearing, but later at a grievance. It is notable the claimant did not cross-examine Kate Steward on whether there were prima facie grounds for issuing the warning, and whether it was given in bad faith and/or manifestly inappropriate and/or issued without prima facie grounds. Having heard the oral evidence and consider the contemporaneous documents, I concluded on the balance of probabilities that whilst the respondent’s failure to arrange an appeal hearing and deal with the claimant’s appeal in a grievance hearing can be criticised and was in breach of the ACAS Code of Practice, the circumstance of the final warning were such that I was satisfied Kate Steward genuinely believed on the basis of a reasonable investigation (which had discounted the theft allegation) that the claimant was guilty of misconduct. It was not unfair for the dismissing and appeal officers to take the final written warning into account and the decision to do so fell within the band of reasonable responses. It is notable that the claimant’s misconduct was similar in both allegations reflecting his attitude to management instructions. The factual matrix set out above support my decision in this regard.[113]I also had in mind the guidance set out in Davies v Sandwell Metropolitan Borough Council 2013 IRLR 374, CA, and Wincanton (above) that a final written warning always implies, subject only to any contractual terms to the contrary, that any subsequent misconduct of whatever nature will usually be met with dismissal, and only exceptionally will dismissal not occur.[114]Having found the decision to dismiss fell well within the band of reasonable responses open to an employer acting reasonably, there is no requirement for me to decide the remaining issues dealing with the “Polkey no difference rule” and “contributory fault.” Had my decision been otherwise, in the alternative, I would have continued to find there was no procedural unfairness and on the question of contributory fault, despite the claimant’s attempt to lay the blame for his actions on the respondent, had I gone on to consider contributory fault, the claimant would have been found culpable and blameworthy (Nelson v BBC (No.2). The claimant, who fully understood the implications of a final written warning, caused his dismissal and it would have been just and equitable to exceptionally reduce the basic and compensatory award by one hundred percent. In arriving at this decision, I have taken into account the claimant’s less than honest response during the entire disciplinary process.[115]In conclusion, I find on the balance of probabilities that the respondent acted reasonably in all the circumstances, taking into account its size and administrative resources, in treating the claimant’s repeated acts of misconduct as a sufficient reason to dismiss him. The dismissal was fair or unfair in accordance with equity and the substantial merits of the case. There were reasonable grounds for that belief; at the time the belief was formed the Respondent had carried out a reasonable investigation; the Respondent otherwise acted in a procedurally fair manner and dismissal was within the range of reasonable responses open to a reasonable employer. Wrongful Dismissal[116]With reference to the issue, namely, was the respondent entitled to summarily dismiss the claimant, given my findings above, theoretically it was on the basis that the claimant’s conduct constituted a repudiatory breach. The respondent’s Disciplinary Policy referred to provided that gross misconduct included “deliberate refusal to carry out a reasonable management instruction” and “protracted unauthorised absence.” As recorded above within the factual matrix, these were the very matters the claimant was found guilty of, and I concur with the respondent’s findings based on the information before me.[117]However, the respondent has admitted the claimant was entitled to notice payment and that the overpayment he received was written off. Accordingly, I find on the basis of the admission, made that the claimant was wrongfully dismissed, his claim for notice pay succeeds and is adjourned to a remedy hearing with the case management orders set out below in force. Unlawful deduction of wages[118]With reference to the issue, namely, is the Claimant owed any arrears of pay, there was no evidence before me to the effect that the claimant suffered an unlawful deduction of wages, and it appears that he was overpaid as a result of the respondent continuing to pay salary during the period the claimant took unauthorised leave. The claimant’s claim is not well-founded and is dismissed.[119]In conclusion, the claimant was not unfairly dismissed and his claim for unfair dismissal is not well-founded and is dismissed. The claimant did not suffer an unlawful deduction of wages and his claim is dismissed. The claimant was not wrongfully dismissed and his claim for breach of contract (notice pay) is well-founded. Case Management to remedy hearing[120]No later than 7 days after this Reserved Judgment and Reasons is sent to the parties the claimant will send to the respondent a document setting out the calculation of his notice pay, gross and net (less lawful deductions of tax and national insurance).[121]No later than 7 days after the respondent has received the claimant’s breakdown, it will write to the Tribunal and copy the claimant setting out a counterclaim if it does dispute the amount owned or agreeing to the amount claimant and paying it, whereupon the remedy hearing can be taken out of the list. Approved by: