Mr A Zamir v Mondelez Europe Services GMBH: 6011839/2025
EMPLOYMENT TRIBUNALS
Case No 6011839/2025
Between
MR AMAR ZAMIRClaimantMONDELEZ EUROPE SERVICES GMBHRespondent
Before
Employment Judge N. ClarkeMr G. Davies (instructed by Solicitor) for claimantMr S. Proffitt (instructed by Counsel) for respondentDate 17 November 2025
JUDGMENT
[1]The complaints of Unfair and wrongful Dismissal, being unfounded, are dismissed. EJ N. Clarke 17 November 2025 PHCM Order (NEW August 2020) 1 of 2 August 2020 Case Number: 6011839/2025 Useful information GENERAL INFORMATION[2]All judgments and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents.[3]There is information about Employment Tribunal procedures, including case management and preparation, compensation for injury to feelings, and pension loss, here: https://www.judiciary.uk/publications/employment-rules-and-legislation-practice- directions/[4]The Employment Tribunals Rules of Procedure are here: https://www.gov.uk/government/publications/employment-tribunal-procedure- rules[5]You can appeal to the Employment Appeal Tribunal if you think a legal mistake was made in an Employment Tribunal decision. There is more information here: https://www.gov.uk/appeal-employment-appeal-tribunal PHCM Order (NEW August 2020) 2 of 2 August 2020
REASONS
[1]I heard this case on 13 and 14 November 2025 and gave an oral judgment with reasons on the second day. These are my written reasons following a request I received on 27 November 2025. I apologise for the delay in providing these reasons, which was due to the pressure of other work.
Procedure
[2]There was an agreed file of documents that ran to 358 pages and a further two pages of evidence, again by agreement. There was video footage. The footage was viewed during the course of the evidence and the parties also agreed that I could view it as part of my deliberations (and therefore in their absence).[3]There were witness statements for both parties; four from the Respondent (Vitalis Chirengwa, Robin Hopkins, Iftikhar Hussain and Andy Railton) and one for the Claimant (the Claimant himself).[4]I asked the parties to proceed on the basis that I had read the pleadings, the witness statements and any documents expressly referred to in those documents. If either party wanted me to consider other documents, then I would have to be taken to them in evidence or submissions. All witnesses gave live evidence.[6]Both parties made closing submissions orally and in writing. I read and listened to them carefully and took account of them in making my decision. The fact that I have not referred to a particular argument here does not mean that it has not been considered. Claims and Issues[7]There was an Agreed List of Issues, which I discussed with the parties at the outset. The Agreed List is as follows: 1. Agreed issues 1.1. That R had a potentially fair reason to dismiss (theft, which is gross misconduct). 1.2. That R genuinely believed that C had committed an act of gross misconduct. 2. Did R act reasonably in treating misconduct as a sufficient reason for dismissing C, taking into account its size and administrative resources and having regard to equity and the substantial merits of the case. The burden is neutral. 2.1. Did the Respondent have reasonable grounds for believing C had committed the alleged misconduct (Burchell)? 2.2. Did R carry out a reasonable investigation into the alleged misconduct? The issue is confined to this sole allegation by C: 2.2.1. The investigation potentially not being concluded before the disciplinary meeting [117] and [119]. 2.3. Did R follow a fair procedure, taking into account the Acas Code of Practice on Discipline and Grievances? This issue is confined to the following allegations by C: 2.3.1. C not being given the opportunity to view the 200 hours of CCTV footage. 2.3.2. Failure to provide a copy of the investigation report until after the disciplinary outcome (i.e. during the appeal meetings). 2.3.3. The same with regard to Robin’s statement (Mr Hussain only read it aloud in the disciplinary meeting). 2.3.4. The same with regard to the CCTV and stills shown at the disciplinary meeting (paras 24.3 and 24.4 of the particulars). 2.3.5. Failure to provide a copy of any of the re-enactment CCTV (and only showing part of it, which Mondelez only did at the appeal stage). 2.3.6. The investigation potentially not being concluded before the disciplinary meeting [117] and [119]. 2.3.7. Failure to provide the requested reasoning for the dismissal (para 29.1 of particulars). 3. Was the decision to dismiss within the band of reasonable responses which a reasonable employer might have adopted? Remedy [not repeated here][8]Although that List was agreed, it was also agreed that it omitted a Wrongful Dismissal claim and that such a claim should be included.[9]As noted, it was agreed that the Respondent had a potentially fair reason to dismiss, namely gross misconduct, and that the alleged gross misconduct in this case was the theft of Grenade chocolate bars.[10]Neither was it in issue that the Respondent genuinely had a belief that the Claimant had committed an act of gross misconduct. The primary issues were, therefore, whether the Respondent acted reasonably in treating misconduct as a sufficient reason for dismissal (including whether there had been a fair and reasonable procedure) and whether the decision to dismiss was within the band of reasonable responses.[11]As a matter of law, the parties agreed that the Tribunal's function is to apply the range of reasonable responses test to both the procedure and substance of the decision, J Sainsbury plc v Hitt 2003 ICR 111, CA. In determining those questions, the Tribunal must not fall into substituting its own view, which would be an error of law.[12]As mentioned, the parties agreed that an omission from the Agreed List was the Wrongful Dismissal claim. This was in the pleadings but absent from the List despite being pursued by the Claimant and defended by the Respondent.[13]The parties agreed that unlike the Unfair Dismissal claim, in a Wrongful Dismissal claim the Tribunal does have to make a determination as to whether the Claimant committed the act said to be a fundamental breach of contract, which in this case is the alleged theft.
Law
[14]The law is set out in Appendix 1.
Findings of Fact
[15]I made the following findings of facts on the balance of probabilities. Where a fact was in dispute, I explain why I made the particular finding. Where it was not in dispute then it is recorded without further comment. I did not make findings on every fact in dispute, but only those relevant to the issues in the claim.[16]The Respondent is a global snack food company that employs over 4,000 people across six factories and three research and development sites in the United Kingdom. The Respondent’s Minworth Distribution Centre is one of the Respondent’s primary distribution centres within the United Kingdom and is a key facility in the Respondent’s distribution and logistics of its goods.[17]The Claimant was employed by the Respondent at Minworth as a Multi-Skilled Operative from 1 July 2019 until 17 December 2024, when the Respondent summarily dismissed him for purported for gross misconduct.[18]By an email on 2 December 2024, the contents of which were not in issue, a Stock & Systems Clerk of the Respondent states “During my night shift on Sunday, 10 November 2024 I was alerted by [a colleague] regarding a pallet that appeared to have been tampered with. .. I immediately accompanied [the colleague] to inspect the pallet, which was stored in an accessible location and did not require removal from the racking for examination. Upon inspection, I discovered that the pallet appeared to have been pilfered. A box from the top layer of the pallet was found opened, with its contents seemingly tampered with. … I took photographs of the pallet, its identification label, and the tampered box. These photographs were shared with the stock manager…”[19]The email goes on to give the Pallet ID number and an Item Code and notes that the snapshot taken during the incident includes a timestamp.[20]The same individual sent an email on 11 November 2024 at 5.46 a.m. that includes a photograph of a pallet. The text of the email includes the same Pallet ID number as in the above email. The photograph shows a number of cardboard boxes, marked “Grenade” stacked and wrapped in red transparent plastic/wrap. The box on the top and at the right side of the stack is open – the two flaps at the top can be seen to be unsealed and protruding.[21]A later email that day, at 12.43 p.m. shows the individual box in question. There is an outer light brown box, of standard cardboard. That box is open and inside it is possible to see two darker brown boxes, marked with the “Grenade” design, which have been referred to as “retail boxes” during the course of the evidence. The body of the email states, “Unfortunately, the outer has 2 boxes missing (12 bars in each so about 24 bars in total)”. That is consistent with the photograph in which there looks to be one layer of the retail boxes missing from the outer box. It was agreed in evidence that the retail price of these bars is £2.50 to 3.00, which means that each retail box is worth about £30.[22]The obvious inference, and which is not in issue, is that someone has opened the outer box and stolen some of the contents.[23]The relevant part of the premises is a large warehouse. From the video footage I have seen, taken with the oral evidence, I understand there were a large number of pallets stored both on racks, which seem to have at least three levels, and on the ground.[24]Those on the ground were in an area separate to the racks, I suspect pending being loaded onto lorries, as they adjacent to bay doors. One of the Respondent’s witnesses told me that there was €80 million worth of stock and 80,000 pallets on site.[25]The aisles between the racking were relatively narrow. They allowed the passage of a crane with a small amount of clearance either side. Pedestrians could walk down empty aisles, but that was not generally permitted (it was allowed in particular circumstances). Pedestrians would struggle to get past a crane in an aisle because of the limited clearance as I have already described.[26]On the racking, the first level of pallets was on steel supports that were about 60 centimetres above the floor. It was not in issue, the Claimant having accepted in oral evidence, that the top of even the lowest (loaded) pallet in the rack could not be reached by an individual standing on the ground, simply because it was too high.[27]At some point in November, Robin Hopkins (“RH”), a gatehouse supervisor employed by G4S at the Respondent’s site, was asked to review CCTV. As he explained in his statement, he was asked to identify any suspicious activity in A Bay aisle AST-T between midnight on 2 November until the early hours of 11 November 2024.[28]That period, he understood, ran from when the relevant pallet arrived in the warehouse until the discovery of the opened box. This is what is said in his witness statement and:28.1 In the course of the Disciplinary Appeal, Andy Railton (“AR”) put questions to RH in an email of 7 February 2205 RH’s response later that day states, “I was asked to view the footage from when the pallets arrived and was placed into the racking up until the date the pallet was discovered on the audit. … I watched all the footage from the date requested and didn’t skip anything up until the date requested.”28.2 Whilst the Claimant criticises the absence of an email in which RH was given those instructions, I cannot see that anything turns on this. The email of 7 February 2025, even though it is after the event, makes his remit clear.[29]It was not suggested that he did not actually review that material and I am satisfied that he did.[30]In particular I found him to be a credible and careful witness:30.1 He previously worked as a Special Police Constable and at National Express where he reviewed CCTV and had on the job training.30.2 He did not make assumptions about what he saw the Claimant doing on the footage. As is clear from his witness statement and the 7 February email I have already referred to, his instinct was to seek the view of a supervisor as to whether what appeared to be happening was normal practice or something else.30.3 He was not employed directly by the Respondent and had no axe to grind.30.4 His evidence, which I found persuasive, was that he looked for innocence before guilt.[31]In my judgment, RH was even-handed and fair in his approach. Whilst there would have been, I am satisfied, a desire to find the culprit, I conclude that what RH did was done in the spirit of investigation. It was not suggested, and there was no evidence I conclude, that he was targeting the Claimant. Neither do I consider that the desire to find a culprit negatively affected the investigation in any other way.[32]I therefore accept his evidence that he scrutinised the CCTV footage in the way he described. The period covered was over 200 hours and RH spent five 12-hour shifts reviewing the material watching contemporaneous footage from a number of cameras.[33]I also accept his evidence that in his review, the only footage he saw of someone interacting with the pallet was the Claimant. There would no doubt, and as he accepts, have been workers that passed the pallet, including on cranes, during his review, but the Claimant’s interaction was more than simply passing by the pallet.[34]In his witness statement he explains: 11. The footage from midnight on 2 November 2024 until 20:43 on 4 November 2024 showed very little activity in the aisle in question. Then, I noticed that a worker approached the AST aisle and got onto the crane beside the location of the pallet. I noticed that this worker was in the crane for a much longer time in comparison. I zoomed in on the CCTV footage to check what he was doing in the crane. I noticed that he began to stand up and face the pallet. I checked with one of the supervisors, Jez, who confirmed that the individual was standing up on the crane. From what I had seen previously, the seat in the crane was very low down, which means that you can't see the crane driver's body when they are in a seated position. It was clear that this individual, however, was standing up. I then saw his arms go up and move in the air towards the top of the pallet. This footage was later extracted and saved from the system and is referred to in Item 78 of the bundle and labelled "AST", from timestamp 20:43 onwards.[35]From my review of the footage with the file name “Item 78 AST”, I can see that the Claimant approaches the aisle at about 20.39.52 (according to the clock within the footage) and board the crane. The crane moves away at 20.42.31. The view of the Claimant is not particularly clear because the camera is at an acute angle to the aisle and is obscured by some of the racks, although there are gaps in the racking that one can see through.[36]Certainly I am able to see that the Claimant is standing for the large part of those 2½ minutes and that at about 20.41 his hands are raised up, and he appears to be wearing white gloves.[37]I should add that I used a zoom function on the VLC application in reviewing the footage, which the representatives suggested during the hearing. The evidence of both RH and AR was that the footage when viewed on the Gatehouse equipment was clearer than the downloaded footage that we were viewing.[38]The Claimant disputed that and in fact said that the opposite was true. I accept the Respondent’s evidence on the point because:38.1 I cannot, as I am invited to do, take judicial notice that one system cannot be better than another, in effect. The tenor of the submission was that digital image quality is determined by the size of the file and therefore cannot be improved from one method of viewing to another. I do not know if that is correct. I think it is possible that resolution may be affected by the software being used to view it, the monitor size, the quality of the monitor itself and possibly other factors. Whether and how it might be affected is complicated. I do not accept that I am entitled to take judicial notice of the proposition that, “you can’t getter better detail from a digital video/still on a larger monitor”. I think it is possible that it will not be the same and so I do not consider it is a matter suitable for judicial notice.38.2 I considered RH to be a credible witness for the reasons already stated.38.3 I also found AR to be a credible witness. In particular, I noted that he conducted a very careful appeal in this case. That involved him undertaking three hearings, and a full review of the evidence as well as further investigations into matters not covered at the Disciplinary Hearing stage. He did not take things at face value and recognised procedural shortcomings in the initial disciplinary process. That reflected a careful and fair approach, in my view. He was an impressive and fair witness.38.4 Importantly, the Claimant, who had had the benefit of seeing footage through the Gatehouse equipment said in oral evidence: “the camera is high up and makes it look like my arms are raised. Why would my hands go up? It is just the angle. It looks like I am touching the pallet but I am not. I am checking controls or switches and confirming it onto the RDT. I have to do the checks. My hands were not raised to the pallet, the angle makes it look like it.” In other words, what the Claimant saw on the AST video is consistent with what the other witnesses saw, albeit that he has a different interpretation of what is actually shown.[39]I am satisfied, therefore, that the Claimant was adjacent to the pallet and that his hands were then raised towards it.[40]RH goes on to state, in his witness statement at paragraph 13: At around 22:37 on 4 November, the individual entered the AWX aisle, which was parallel to the AST aisle and within the frame of the same camera. I noticed that he waited there for some time before starting to move around in the crane seating area. I zoomed in to see what he was doing. I saw on zooming in that there were boxes of a light brown colour being placed on the seating area before being opened and it looked like the individual was placing the items from the boxes into his inner fleece…. I saved down this footage which can be found at Item 79 labelled 'AWX another angle" from timestamp 22:37 onwards. My statement at page 90 of the final hearing bundle refers to this time as 23:40 however the correct timestamp was 22:37[41]We have footage with a filename “AWX another angle”, but I cannot see brown boxes in it, even using the zoom function. I can see the Claimant standing on the crane and taking some time to exit it, but it is not clear to me what is happening.[42]In oral evidence RH said that the brown boxes were more visible on another camera that faced the AWX aisle more directly. The fact of other footage of AWX is supported to some extent by the fact that RH chose to call one of the files “another angle”. That obviously implies two angles. Further, both the Claimant and AR in evidence agreed or stated that they had seen other footage of the AWX aisle during the appeal, although the Claimant’s recollection was that it was dark and nothing was visible on it. That footage was not in evidence before me.[43]I conclude that RH had a reasonable belief that he had seen brown boxes in the footage because:43.1 There is no dispute that there was other footage, which had been viewed.43.2 For the reasons already outline, I found RH to be a credible witness.[44]Finally, there was footage of the Claimant walking across the bay when, it has been suggested, there is a bulge in his fleece top. I have reviewed that footage and whilst there appears to be some sort of protrusion, it is not clear to me what it is – whether just a fold in the cloth or something more.[45]There was other footage, but which I did not consider to be relevant.[46]By letter of 17 November 2024, the Claimant was suspended. No issue was taken with the suspension or the letter. It refers to an allegation of gross misconduct, being allegations of “A discrepancy with Mondelez product resulting in stock loss” and “unauthorised removal of company product from site”. The letter states that suspension is no indication of guilt. The Claimant was invited to an investigation meeting in that letter.[47]In investigation meeting took place on 19 November 2024. Minutes of the meeting were in the agreed file before me.[48]Vitalis Chirengwa (“VT”) produced an Investigation Report, dated 3 December 2024, which was in the file before me.[49]On 4 December 2024, VT sent the Claimant a letter stating that the Claimant’s suspension would continue to 12 December 2024 whilst the investigation continued. VT’s witness statement explains that reference to an ongoing investigation was in error and that his investigation had, in fact, concluded by then. I accept this evidence on this point because:49.1 VT had produced his Investigation Report the day before and given recommendations to proceed to a Disciplinary Hearing.49.2 It follows that, self-evidently, the investigation had finished[50]By letter of 8 December 2024, the Claimant was invited to a Disciplinary Hearing on 11 December 2024. That repeated the allegations in the form of the 17 November 2024 letter. The Claimant would also have known the substance of the allegations from the investigation meeting.[51]The Claimant was not, however, provided with the Investigation Report before the Disciplinary Hearing. The Claimant was not provided with any CCTV footage or RH’s report on the CCTV.[52]Minutes of the Disciplinary Hearing, with annotations (I presume from the Claimant) were in the file before me. The first meeting was adjourned after about 40 minutes in order for the Claimant to obtain a representative, which he did for the resumed Hearing on 16 December 2024.[53]Before the resumed hearing, on 15 December 2024, the Claimant sent the Iftikhar Hussain (“IH”) the Disciplinary Manager, with53.1 Amendments to the Investigation Meeting notes53.2 A request for minutes of the first Disciplinary Hearing53.3 The following: “During both my meetings [19 November and 11 December] I requested to be shown any video footage to help refresh my memory and provide a clearer explanation. All letters I have received state that I have been provided with full evidence. But I feel that I have been provided with a limited number of witness statements and not the evidence identified in them such as photographic images and timestamp. I kindly request to have these made available in tomorrow’s meeting.”[54]As mentioned above, the attendants at the Disciplinary Hearing went, as part of that hearing, to the Gatehouse to review the CCTV that day. The Minutes also indicate that the RH’s CCTV report was read out during the meeting.[55]IH wrote to the Claimant on 17 December 2024 with the outcome of the Disciplinary Hearing, namely dismissal for gross misconduct. There is a review of the evidence and the letter then states: After thoroughly reviewing all available information, including your responses during the investigation and disciplinary meetings, I have decided to dismiss you with immediate effect for gross misconduct. This decision is based on the grounds of reasonable belief formed from your actions and behaviour, supported by the evidence examined and the conclusions reached in line with our internal procedures. While we acknowledge the gravity of this decision, we believe it is essential to maintain the standards expected within our organisation”[56]The letter noted the Claimant’s right to appeal. The Claimant exercised that right by letter of 22 December 2024, which sets out a lengthy and well-articulated challenge to the decision:56.1 Procedural unfairness: Not being given all the relevant evidence before the disciplinary hearing, not being given adequate time to prepare for the disciplinary hearing, discrepancies in the evidence, addition of an allegation of breach of trust, etc.56.2 Inconclusive and misinterpreted evidence56.3 Contradictory claims regarding the prayer room56.4 Inconsistency in the allegations and process.56.5 Doubt and ambiguity56.6 A request for a review.56.7 Maintenance of the Claimant’s innocence.[57]The appeal was dealt with by AR who, I have already stated, I found to be an impressive witness. The process of the appeal was:57.1 A meeting on 24 January 2025, when the Claimant was given an opportunity to explain the basis of his appeal. The matter was then adjourned for AR to consider the points raised.57.2 A meeting on 29 January 2025, when the Claimant produced a 11-page timeline document and CCTV stills. Again, the matter was adjourned for AR to consider the points.57.3 AR reviewing the CCTV again.57.4 AR reviewing the CCTV with the Claimant on 3 February 2025.57.5 AR liaising with a colleague about a reconstruction of the incident.57.6 AR liaising with RH in relation to CCTV (As already referred to above)57.7 AR further recreating the incident.[58]By email of 4 February 2025, the Claimant thanked AR for “your time yesterday in reviewing the CCTV footage for the second time” and added further commentary.[59]I was impressed by the care that AR took over the appeal.59.1 He met with the Claimant three times in the process, including allowing two reviews of the CCTV footage at the Gatehouse.59.2 He put further questions to RH about his review of the CCTV, in particular confirming that he had reviewed all of the footage.59.3 His recreation of the incident to determine whether the top of the pallet would have been accessible from a crane at its lowest level.[60]The Claimant did not request sight of the whole 200 hours of CCTV footage.[61]In my judgment this was a genuine review of the evidence and allegation, approached with an open mind.[62]The appeal outcome is in a letter of 14 March 2025:62.1 “My investigation clearly shows that you were not provided with all the information gathered during the investigation before your disciplinary hearing. To ensure that you received all the evidence I had gathered as part of my reinvestigation into the facts of the events, you were provided with a bundle of 41 documents, including the notes from our meeting on 24 and 29 January 2025. You were also offered the opportunity again on 24 January, before the start of the appeal hearing, to review the initial CCTV footage. Before our reconvened meeting on 27 February, you were given the opportunity to review the CCTV footage, including the zoomed in footage that I had reviewed and the recreation of the events that had been completed. You accepted the invitation to review the footage on both occasions.”62.2 In relation to preparation time for the Disciplinary Hearing, noting that the Claimant had not asked for more time and concluding that the meeting would have been adjourned had the Claimant done so.62.3 In relation to representation, noting that the Claimant had indicated he was content to continue initially without a representative but that the meeting was later adjourned to allow the Claimant to get representation.62.4 On procedure, concluding that the 8 December letter inviting the Claimant to an investigation meeting on 12 December was an error.62.5 Noting the points about the evidence.62.6 Stating that the appeal in the circumstances included a “reinvestigation”.62.7 Dismissing the appeal: “In deciding on your appeal, I have considered your employment record with the business and what you presented and stated during your appeal hearings. Clearly, you were not provided with all the documentation before the disciplinary hearing, which I have taken steps to address during my investigation into this case. I also needed to consider, even with the errors within the process, and having corrected this during the appeal, I need to decide whether the dismissal was fair. Therefore, on the grounds of reasonable belief and a fundamental breakdown of trust and confidence, I have decided not to uphold your appeal, and your dismissal stands.”
Conclusions
[63]The Respondent conducted a reasonable investigation into the alleged misconduct:63.1 There was clear evidence of a box of Grenade bars that had been opened with boxes clearly removed, as shown in the photograph. It was reasonable to infer that there had been a theft.63.2 RH conducted a review of the entirety of the relevant CCTV footage from the arrival of the relevant pallet into the warehouse until the discovery of missing stock. That was a period of some 200 hours and took him five working days to complete.63.3 The Respondent identified the Claimant as having behaved unusually in proximity to the relevant pallet and therefore interviewed him about it.63.4 VC took statements from two other employees who had noticed the open box.63.5 VC produced an investigation report.[64]The Claimant’s “sole allegation” on the reasonableness of the investigation is that the investigation was “potentially not concluded before the disciplinary hearing” (from the List of Issues). I have considered this point, but it does not change my conclusion that the investigation was reasonable:64.1 I found that the 4 December 2024 letter’s reference to an ongoing investigation was in error and that the investigation had concluded by then.64.2 Whilst the Claimant was entitled to take the 4 December letter at face value, once he received the letter of 8 December 2024, inviting him to a disciplinary hearing and referring to the “full investigation evidence”, he would have been alive to the inconsistency. In my judgment he could and should have inferred that the first letter was either wrong or superseded by events.64.3 In any event, what the Claimant thought does not go to the question of the reasonableness or otherwise of the investigation. I have concluded that the investigation was concluded by 3 December 2024 and that it was reasonable for the above reasons.[65]In my judgment, the Respondent genuinely believed that the Claimant had committed gross misconduct, namely theft of Grenade bars. In any event, this is not in dispute.65.1 There was clear evidence of a box of Grenade bars that had been opened with boxes clearly removed.65.2 The investigation highlighted the Claimant as the only likely suspect.65.3 The Respondent gave the Claimant an opportunity to explain what he was doing in the footage, which appeared to be suspicious.65.4 The Respondent clearly did not accept that there was an innocent explanation for that behaviour.[66]That was a potentially fair reason for dismissal under section 98(2)(b) ERA 1996, which is also not in issue.[67]On the question of a fair procedure, I have concluded that the procedure was within the band of reasonable responses and fair:67.1 The Respondent was entitled to and reasonably relied on RH’s review of the CCTV. There was a very large volume of footage to consider between 2 and 11 November being roughly 200 hours. There were a number of cameras to review. The review took a total of five working days. RH had a a degree of independence, being employed by G4S rather than a direct employee of the Respondent, and was a careful and fair arbiter for the reasons I have already outline.67.2 It was within the band of reasonable responses not to allow the Claimant access to all of that footage, as opposed to extracts:67.2.1 CCTV is significant intrusion on employees and visitors, and care has to be taken over dissemination to others because of that personal data. There is a distinction to be drawn between security guards reviewing CCTV for the purpose of detecting misconduct and other employees being given the same access.67.2.2 There was a large volume of material. Allowing the Claimant access to that would have created obvious practical difficulties, inconvenience and expense. It would not have been reasonable to provide copies for the above reasons, and as such the only viable option would be to allow the Claimant access to view the material on site. That would likely have taken longer than the 5 working days taken by RH and would have required a security guard’s attendance for the whole period.67.2.3 The Claimant’s argument, put forcefully in the written submissions, is that he was deprived of the opportunity of reviewing footage that “may have shown the real culprit”. There is a significant distinction between allowing the Claimant access so that he might find evidence to implicate others and allowing access to enable him to explain his own conduct on the footage. In my judgment it was proportionate, fair, appropriate and within the band of reasonable responses to allow RH to review the entirety of the footage, to establish any points of relevance and to extract only those sections for the Claimant (and those conducting the investigation and disciplinary process) to consider.67.2.4 The Claimant did not ask to review the entirety of the CCTV during the appeal process.67.3 The failure to provide the investigation report at before the Disciplinary Hearing was a procedural failing but was rectified on appeal:67.3.1 A core tenet of a fair process is giving employees enough information about the allegations they face. The ACAS Code on Disciplinary and Grievance Procedures states, If it is decided that there is a disciplinary case to answer, the employee should be notified of this in writing. This notification should contain sufficient information about the alleged misconduct or poor performance and its possible consequences to enable the employee to prepare to answer the case at a disciplinary meeting. It would normally be appropriate to provide copies of any written evidence, which may include any witness statements, with the notification.67.3.2 In my judgment it was obviously an error (as opposed to being deliberate). Reference to the “full investigation evidence” being “enclosed for your review” is made in the 8 December letter. On the balance of probabilities I consider that an indication of an intention to include the report but which was then omitted in error.67.3.3 The Claimant received the report as part of the appeal process. He had time to review it and all of the evidence. He was allowed to view the CCTV and to put his case very fully. The Appeal was a genuine and thorough reconsideration of the allegation, not simply a review. AR actively turned his mind to the allegation and dealt with the appeal fairly and thoroughly. Looking at the matter as a whole (in line with Taylor v OCS, below), the process was fair and within the band of reasonable responses.67.4 The same applies to the failure to provide RH’s CCTV review statement before the Disciplinary Hearing. In my judgment the failure at the Disciplinary Hearing stage is less serious – given that the report was read during the hearing - but it ought to have been given in advance. In any event, as with the Investigation Report, it was given to the Claimant before the appeal, and he had opportunity to comment upon it with that process.67.5 Similarly in respect of CCTV and stills shown at the disciplinary hearing. The Claimant had, for the reasons outlined above, proper opportunity to consider those in the appeal.67.6 Similarly in respect of the “re-enactment CCTV”, which the Claimant says was shown to him by AR at the appeal stage.67.7 I have concluded that the investigation was concluded before the disciplinary hearing. To the extent that the Claimant is submitting that the 4 December letter, in its erroneous suggestion investigation was continuing, caused procedural unfairness, I reject the submission. For the reasons already stated, it should have been obvious to the Claimant, once he received the 8 December letter, that the 4 December letter was wrong. In any event, he attended the Disciplinary Hearing knowing the allegations he faced. He did not state in that hearing that he thought the investigation was ongoing. Further, the Claimant was able to raise this point in the appeal.67.8 The List of Issues refers to paragraph 29.1 of the Particulars in which the Claimant states that he asked for “clarity about which evidence was relied on for the decision [to dismiss]” on 19 December 2024 and that the reply, “all of the information/evidence that was discussed with you in the Disciplinary meeting and that has been shared with you has been taken into consideration, alongside and mitigation.” That did not render the process unfair, in my judgment:67.8.1 There were detailed outcome letters from the Disciplinary Hearing and Appeal.67.8.2 By the Appeal the Claimant was aware of all of the evidence that the Respondent was relying on in making its decision.67.8.3 Overall, the process was within the band of reasonable responses.[68]The sanction of dismissal was within the band of reasonable responses.68.1 Stealing is dishonest.68.2 The Claimant had access to large amounts of stock. Grenade bars were relatively small but relatively valuable (compared to ordinary chocolate bars). It would be relatively easy to steal chocolate bars in the context of the Claimant’s role and so there was a significant degree of trust placed in him by the Respondent.68.3 This was a breach of that trust.[69]It follows that the Unfair Dismissal claim is not well-founded and is dismissed.[70]On the Wrongful Dismissal claim, I have concluded that the Claimant was guilty of a fundamental breach of contract, by stealing Grenade bars from the Respondent that entitled them to dismiss him summarily for the following reasons:70.1 I accept the evidence of RH, and on my own review of the CCTV footage, that the Claimant was adjacent to the relevant pallet at a relevant time and with his hands raised towards the top of the pallet.70.2 I accept RH’s evidence that on his review of the evidence there were no other suspected culprits in relation to the relevant pallet.70.3 The pallet was covered with plastic sheeting which any thief would have taken some time to remove in order to get access to the chocolate. The Claimant was positioned adjacent to the pallet for an extended period of time.70.4 I accepted the Respondent’s evidence that the height of the relevant box meant that access could only be gained by standing on a crane or some other form of lifting. The Claimant was adjacent to the box on a crane at a relevant time.70.5 There was circumstantial evidence of relevance:70.5.1 The Claimant liked and had an interest in these bars. On 2 November 2024, according to his own disclosure (and accepted in evidence) he had purchased four boxes of 12 bars of four different flavours of Grenade Bars.70.5.2 The stolen bars were of a different flavour to the ones the Claimant had purchased on 2 November 2024 and the Claimant admitted in evidence that he was interested in trying the different flavours (as was obvious from the 2 November purchase)70.5.3 Whilst this is circumstantial evidence, and I am therefore careful as to the weight to be applied to it, it nevertheless weighs in the balance.70.6 I conclude that whilst the Claimant is generally an honest person, in a moment of madness he gave way to temptation and stole chocolate from the Respondent.[71]It follows that the complaint of Wrongful Dismissal is unfounded. Employment Judge N. Clarke 2 March 2026 Useful information GENERAL INFORMATION[72]All judgments and any written reasons for the judgments are published, in full, online at https://www.gov.uk/employment-tribunal-decisions shortly after a copy has been sent to the claimants and respondents.[73]There is information about Employment Tribunal procedures, including case management and preparation, compensation for injury to feelings, and pension loss, here: https://www.judiciary.uk/publications/employment-rules-and-legislation-practice- directions/[74]The Employment Tribunals Rules of Procedure are here: https://www.gov.uk/government/publications/employment-tribunal-procedure- rules[75]You can appeal to the Employment Appeal Tribunal if you think a legal mistake was made in an Employment Tribunal decision. There is more information here: https://www.gov.uk/appeal-employment-appeal-tribunal APPENDIX 1 UNFAIR DISMISSAL
Conclusions
[1]Section 98 ERA 1996 provides:(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show— (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a 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 which the employee held.(2) A reason falls within this subsection if it— (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.[2]That means that there are two stages:a. The employer must show the reason for dismissal, which can only be one of the reasons in subsection (2), andb. The Tribunal must determine whether the dismissal was fair or not by considering whether the employer acted reasonably in dismissing the employee for the reason given.[3]The burden of proof on employers at the first stage is not a heavy one. It is not a question of whether the reason justified the dismissal, just a question of what the reason was, including whether that was the genuine reason.[4]The question relates to the reason at the time, so employers cannot establish a different reason based on facts that came after the decision. W Devis and Sons Ltd v Atkins 1977 ICR 662, HL.[5]Subsection (4) provides that ‘the determination of the question 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 equity and the substantial merits of the case’.[6]On the second stage, the tribunal must be satisfied that, in all the circumstances, the employer was actually justified in dismissing for that reason. For this part of the test, there is no burden of proof on either party. Whether dismissal was reasonable is a neutral question for the tribunal to decide — Boys and Girls Welfare Society v Macdonald 1997 ICR 693, EAT.[7]This is generally expressed as an objective question, namely what a reasonable employer would have done in the circumstances, NC Watling and Co Ltd v Richardson 1978 ICR 1049, EAT, but will also include the subjective element of genuinely held beliefs of the employer at the time of the dismissal.[8]A tribunal must not, however, substitute itself for the employer and consider how it would have responded to the established reason for dismissal. Employers often have at their disposal a range of reasonable responses to matters such as the misconduct or incapability. Different employers may choose different outcomes. Tribunals therefore apply, the ‘band of reasonable responses’ approach, by asking whether the employer’s action was within (or outside) the band (or range) of reasonable responses open to an employer, British Leyland (UK) Ltd v Swift 1981 IRLR 91, CA.[9]Further guidance was given in Iceland Frozen Foods Ltd v Jones 1983 ICR 17: ‘We consider that the authorities establish that in law the correct approach for the… tribunal to adopt in answering the question posed by [S.98(4)] is as follows:(1) the starting point should always be the words of [S.98(4)] themselves;(2) in applying the section [a] tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the… tribunal) consider the dismissal to be fair;(3) in judging the reasonableness of the employer’s conduct [a] tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;(4) in many (though not all) cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another;(5) the function of the… tribunal, as an industrial jury, 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. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.’[10]The range of reasonable responses test also applies to the procedure by which that decision is reached — J Sainsbury plc v Hitt 2003 ICR 111, CA[11]Procedural fairness is an integral part of the reasonableness test under section 98(4), Polkey v AE Dayton Services Ltd 1988 ICR 142, HL. Where an employer fails to take the appropriate procedural steps, the one question a tribunal is not permitted to ask in applying the reasonableness test is whether it would have made any difference if the right procedure had been followed. That question is simply irrelevant to the issue of reasonableness.[12]That means: a) in a case of incapacity, giving an employee fair warning and a chance to improve b) in a case of misconduct, investigating fully and fairly and hearing what the employee wants to say in explanation or mitigation c) in a case of redundancy, warning and consulting affected employees, adopting a fair basis for selection and taking reasonable steps to redeploy affected employees.[13]The tribunal should have regard to the procedures set out in the ACAS Code.[14]Not every procedural defect will render a dismissal unfair. Tribunals need to look at procedural flaws in context and to consider their implications for the overall reasonableness of the employer’s decision to dismiss. It will almost inevitably be the case that in any alleged unfair dismissal a claimant will be able to identify a flaw, small or large, in the employer’s process, and that it is therefore for the tribunal to evaluate whether that defect is so significant as to amount to unfairness. Sharkey v Lloyds Bank plc EATS 0005/15.[15]As to appeals:a. Nothing prevents an employer’s appeal panel upholding a decision to dismiss on a different basis from that on which the original decision was made. Perry v Imperial College Healthcare NHS Trust EAT 0473/10b. Defects in the original disciplinary procedures may be remedied on appeal. Taylor v OCS Group Ltd 2006 ICR 1602, CA,c. There is no limitation on the nature and extent of the deficiencies in a disciplinary hearing that can be cured by a thorough and effective internal appeal, Khan v Stripestar Ltd EATS 0022/15. WRONGFUL DISMISSAL[16]Wrongful Dismissal is a claim based on breach of contract.[17]As noted in Enable Care and Home Support Ltd v Pearson EAT 0366/09, this is a different test to Unfair Dismissal:[28]Here the question is quite different. The Employment Tribunal is not concerned with the reasonableness of the employer's decision to dismiss, but the factual question, was the employee guilty of conduct so serious as to amount to a repudiatory breach of the contract of employment entitling the employer to summarily terminate the contract?18. The question of whether dismissal without notice is a breach of contract is “essentially one of fact for decision by the employment tribunal”, Leach v Office of Communications 2012 ICR 1269, CA.19. In cases of wrongful dismissal it is necessary for an employer to prove that an employee had actually committed a repudiatory breach of contract; reasonable belief in guilt is irrelevant in cases of wrongful dismissal. Shaw v B and W Group Ltd EAT 0583/11.