Mr A WysoczanskiClaimantCurrys Group LtdRespondent
Before
Employment Judge PlattMr Hyland (instructed by solicitor) for claimantMs Ferrario (instructed by Counsel) for respondentDate 21 March 2025
JUDGMENT
[1]The complaint of unfair dismissal is not well-founded and is dismissed.[2]The complaint of wrongful dismissal is not well-founded and dismissed.[3]The complaint of unlawful deductions from wages is not well-founded and is dismissed.[4]The respondent’s counter-claim is not well-founded and is dismissed.
REASONS
Procedure
[5]The hearing was listed for two days on 26 and 27 February 2025. An application for a postponement was made by the respondent which had been refused by Regional Employment Judge Freer. Both parties attended the hearing seeking a postponement although the respondent’s primary position was that the claim should be struck out on the basis that the claimant had not complied with case management orders and the claim had not been actively pursued.[6]The claimant did not provide his witness statement until the evening of 25 February 2025 and there had been a number of issues regarding noncompliance with the tribunal’s orders. However, the parties had exchanged witness statements and a large bundle had been prepared. After making enquiries of listing, the tribunal decided to proceed with the hearing and listed the claim for a further day. The tribunal therefore heard evidence over three days. The tribunal decided not to strike out the claim on the basis that the claim was being actively pursued and that any matters pertaining to the unreasonable conduct of the proceedings could be addressed in a costs application.[7]The tribunal heard from five witnesses who were all cross-examined. The claimant gave evidence and the respondent called four witnesses: Ms Ainsworth, Mr Jones, Mr Doherty and Mr Luik.[8]The tribunal read the documents it was referred to in the reading list prepared by the respondent’s representative. The claimant’s representative was given the opportunity to identify any additional documents the tribunal should consider and did so. The tribunal therefore read the documents referred to in the list and the additional documents to which it was referred. It also read the documents referenced during witness evidence.[9]The tribunal considered written submissions from both parties which were provided on 3 March 2025. The respondent made an application for costs.[10]The tribunal conducted the hearing in accordance with the overriding objective including dealing with proceedings flexibly. In particular, the hearing started at 9.30am on days 2 and 3 and the respondent’s representative attended a short High Court hearing on the morning of day 3 of the hearing. Numerous breaks were permitted throughout.[11]There was insufficient time for the tribunal to give judgment during the hearing and it was explained to the parties that judgment would be reserved and written reasons would be sent to the parties. Issues[12]The issues to be determined by the Tribunal 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 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: i. there were reasonable grounds for that belief; ii. at the time the belief was formed the respondent had carried out a reasonable investigation; iii. the respondent otherwise acted in a procedurally fair manner; iv. dismissal was within the range of reasonable responses.1.3 The basis of the claimant’s unfair dismissal complaint is that he alleged that the respondent had no reasonable belief that he committed gross misconduct and that the allegations had been raised in bad faith by fraudulent employees; that the respondent did not conduct a reasonable investigation because it lasted 11 months and did not interview key witnesses; and that dismissal was outside the band of reasonable responses because the respondent did not dismiss other employees who had mis-sold warranties. 2. Wrongful dismissal2.1 What was the claimant’s notice period?2.2 Was the claimant paid for that notice period?2.3 If not, was the claimant guilty of gross misconduct? 3. Unlawful deductions from wages3.1 Was the claimant entitled to full pay for the duration of the investigation?3.2 Is he owed five months’ pay? 4. Counter claim4.1 Does the claimant owe the respondent £18,704.80 because he was overpaid company sick pay during the period 31 August 2023 to January 2024?4.2 The respondent relies on the claimant’s wrongful dismissal claim as the basis of its counter claim and relies on the disciplinary policy as the basis for him not being entitled to receive company sick pay. Findings of fact[13]The tribunal found the respondent’s witnesses to be reliable witnesses. To the extent there was a conflict between eh claimant’s evidence and the evidence of the respondent’s witnesses, the tribunal preferred the evidence of the respondent’s witnesses and noted that there were a number of inconsistencies in the claimant’s evidence.[14]The claimant worked for the respondent from 1984 until he was dismissed on 8 May 20204 for gross misconduct. He had worked in a variety of roles and at the time of his dismissal had been the General Manager (GM) of the Stamford store.[15]Nicola Ainsworth, is employed as a Profit Protection Manager. On 14 June 2023 as part of her routine monitoring role, she decided to investigate the number of refund resales that she came across at the Stamford store. She went on to investigate this and upon becoming concerned about an abuse of the system, spoke to staff. The staff said that they had been instructed to mis-sell by two Assistant Managers, Francesca Campbell and Thomas Marshall. Ms Ainsworth interviewed both and suspended them.[16]There is an extract of the interview with Ms Campbell on 14 June 2023 in the bundle. Ms Campbell repeatedly asked Ms Ainsworth whether the discussion was confidential. She had been reluctant to mention the claimant’s name. According to Ms Ainsworth, Ms Campbell decided not to say anything further when she had been unable to guarantee her any confidentiality. She did, however, say that she had felt pressure to reach targets.[17]Also on 14 June 2023, Ms Ainsworth interviewed a member of staff, Luke Kulczak. He was specifically asked about refunds and resales regarding care and repair. He said he was asked by a manager to do it and said that the claimant was aware of this. He said that the claimant knew about it and then said that he ‘imagined’ that he had known. Mr Kulczak went on to say that the claimant created a ‘miserable’ environment and he had been very reluctant to speak up.[18]Ms Ainsworth first spoke to Mr Marshall on 16 June 2023. He described the Stamford store as a ‘dictatorship’. When asked if he thought about complaining he intimated that there was a view that it would be pointless to do so. He described how colleagues had been in fear of handing in their notice because of the claimant’s reaction. Mr Marshall stated that both he and the claimant had been aware that products were being manually refunded and there had been mis-selling and mis-appropriation of discount. He also raised concerns about the claimant being obsessed by him and Ms Campbell having a romantic relationship.[19]Mr Marshall and Ms Campbell were both suspended because they had admitted to being involved in the mis-selling of warranties. Ms Ainsworth ceased to have any involvement in their disciplinary investigation. Both Mr Marshall and Ms Campbell were ultimately issued with final written warnings following a disciplinary procedure.[20]Ms Ainsworth arranged to meet the claimant at the Stamford store on 16 June 2023 and she interviewed him in relation to the alleged mis-selling of warranties. The claimant denied any knowledge of mis-selling. Ms Ainsworth’s evidence was that the meeting was ‘relatively amicable’ and the claimant signed the interview notes when the meeting ended.[21]On 29 August 2023, the claimant raised a grievance in which he said that during this meeting with Ms Ainsworth on 16 June 2023, that she had flashed her underwear at him. This was denied by Ms Ainsworth.[22]Ms Ainsworth received a telephone call from ER advising that having listened to the audio recordings of the meetings with Ms Campbell and Mr Marshall, that the claimant should be suspended pending an investigation. Ms Ainsworth spoke to Matthew Jones, Regional Manager, and they discussed that Ms Ainsworth would contact the claimant to inform him that he was being suspended.[23]Adrian Rowe, General Manager of the Grantham store, attended with her on 27 June 2023 and when he left the room, the claimant became agitated, threw his keys in her direction, swore at her and said he was going to resign. When he was asked him to calm down, the claimant told her to ‘fuck off’ and walked away. Ms Ainsworth did not have the opportunity to suspend the claimant. The claimant re-entered the store, threw his lanyard and fob in the direction of Ms Ainsworth, retracted his resignation, said that he would be going on sick leave and left the premises. Ms Ainsworth informed Mr Jones what had happened and he took over the investigation from that point.[24]Ms Ainsworth was interviewed twice in relation to her involvement with the claimant. She gave a consistent account of the events during both interviews. John Moore, a visiting Engineer that was in the Stamford store on 27 June 2023 corroborated what Ms Ainsworth said about what had happened on 27 June 2023 included that the claimant had told her to “fuck off” and left the premises. The claimant said during the hearing that he had always exchanged pleasantries with John Moore and had never had a confrontation with him. The tribunal accepts the evidence of Ms Ainsworth as corroborated by Mr Moore.[25]Mr Jones was the claimant’s line manager in June 2023. He decided to investigate allegations about the claimant’s conduct that had been raised by Ms Campbell and Mr Marshall after the incident on 27 June 2023. The allegations against the claimant were expanded on the back of information gathered by Ms Ainsworth and the claimant’s alleged conduct on 27 June 2023. As part of the investigation, 26 witness interviews took place.[26]Mr Jones formulated two sets of questions in writing for the claimant to answer as part of the investigation because the claimant had been on sick leave throughout the investigation and said that he was too unwell to attend an interview. The claimant provided two sets of answers which were considered by the tribunal.[27]In summary, the claimant’s position was that Ms Campbell and Mr Marshall had influenced colleagues to act against him and that colleagues had colluded against him. He stated that there had been no wrong-doing by him.[28]In relation to the allegation of not fulfilling his contractual hours, he said that he would work from home; spent ‘too much time on the shop floor’ and had attended conferences.[29]Having taken from the summer of 2023 to January 2024 to interview the numerous witnesses, provide the claimant with questions in writing and receive his answers, Mr Jones completed his interviews around 18 January 2024. He was asked at this time to pause the investigation because the claimant had raised a grievance. Subsequently, he submitted his investigation report on 7 March 2024.[30]The claimant raised a grievance on 7 July 2023. He claimed that he should have received full pay and was unhappy with the disciplinary investigation process. The grievance was investigated by Mark Ridge, Regional Manager, and relevant persons were interviewed. There was some overlap with the disciplinary process. The claimant raised two further grievances on 20 October 2023 and 12 February 2024.[31]Mr Jones’ investigation report led to a disciplinary hearing which was chaired by Stuart Doherty, Regional Manager. Mr Doherty wrote to the claimant on 11 March 2024 inviting him to attend a disciplinary hearing on 22 March 2024 over MS Teams. The claimant was given the option of participating in the process by giving written representations. The letter also set out that part of the evidence included audio recordings and that the claimant was invited to listen to them and that a separate session could be set up for this purpose. The letter set out the allegations against the claimant which made reference to serious inappropriate behaviour specifically repeated abusive or threatening behaviour and sexual misconduct at work. 10 detailed examples were cited in the letter. The letter set out that the allegations constituted potential gross misconduct and could result in termination of employment with immediate effect. The letter enclosed notes of interviews with 26 people, transcribed audio recordings and relevant employment policies. The letter offered the claimant the right to be accompanied at the hearing.[32]Following Mr Doherty sending the invitation to the disciplinary hearing correspondence took place between him and the claimant and the disciplinary hearing was rescheduled at the claimant’s request on 9 April 2024.[33]The disciplinary hearing went ahead on 9 April 2024 and the claimant was accompanied by Dave Pearce. The claimant had sent some information and documentation across prior to the hearing for Mr Doherty to consider. The disciplinary hearing transcript sets out what was discussed at the disciplinary hearing and makes reference to the allegations that were put to the claimant. The hearing lasted for a considerable period of time: 3 hours 45 minutes including breaks. Mr Doherty decided to adjourn the hearing and interview five further people. Mr Doherty decided that it was unnecessary to interview additional witnesses suggested by the claimant as they had related to an incident alleged to have occurred at any event in Liverpool incident involving Ms Campbell. The tribunal accepts Mr Doherty’s evidence that he did not take this incident into account when making his decision. Mr Doherty sent the notes of the disciplinary hearing to the claimant and Mr Pearce after the hearing.[34]On 8 May 2024, Mr Doherty wrote to the claimant to inform him that he had concluded his additional investigations and wanted to reconvene the disciplinary hearing. He asked for the claimant’s availability. The claimant responded to confirm that he wanted Mr Doherty to make his decision in writing rather than meet with him again. Mr Doherty provided the claimant with additional statements that were taken during his further investigations and gave him the opportunity to provide any further points in writing. The claimant expressed his wish for the process to be concluded and stated that he did not want to make any further comments in writing.[35]Mr Doherty wrote to the claimant on 23 May 2024. Mr Doherty decided that the allegations against claimant had been proven and that his conduct amounted to gross misconduct which resulted in the claimant’s summary dismissal. The letter set out detailed reasons for Mr Doherty’s decision. The letter made reference to the fact that he had considered a lesser sanction which is something that he repeated in evidence. The tribunal accepts that he did so.[36]The letter sets out that he had given serious thought as to whether it had been likely that collusion had taken place as alleged by the claimant. Mr Doherty’s evidence is that he gave very careful consideration to the decisions that he made. The tribunal accepts Mr Doherty’s evidence. He had considered the most serious allegations to be those alleging sexually inappropriate behaviour towards colleagues.[37]The claimant appealed the decision to dismiss him and Daniel Luik was appointed on 5 July 2024 to consider the claimant’s appeal. Mr Luik considered all of the relevant documents and recordings. During the tribunal hearing, the claimant questioned (for the first time) whether Mr Luik had been qualified to hear the appeal as it had been his first one. Mr Luik’s evidence was that he conducted the appeal with due diligence. The tribunal accepts Mr Luik’s evidence and finds that Mr Luik was an appropriate person to conduct the appeal.[38]The appeal hearing was held on MS Teams on 29 July 2024 and the claimant was accompanied by a former colleague. He agreed the basis of his appeal with Mr Luik at the beginning of the hearing and added to it. The claimant was given the opportunity to present his appeal properly at the hearing.[39]When he was asked about evidence to demonstrate collusion, the claimant said that Ms Campbell and Mr Marshall had been on a ‘witch hunt’ and a manager had told him that Ms Ainsworth had spoken to him about a dismissal. He was not been prepared to provide this person’s name. During the appeal hearing the claimant requested additional people to be interviewed. Mr Luik decided that he would speak to these individuals: Dave Pearce, Monika Radzichowska, Mark Shakespeare, Dinesh Vaghela and Mark Booth. They were all asked about a conference in Liverpool during which Ms Campbell had alleged that she had been subjected to a sexual comment by the claimant. They all said that they had had no knowledge of it. However, when Ms Campbell referred to this incident she had been clear that there was no-one else present. In any event, Mr Doherty did not take this incident into account when he made the decision to dismiss the claimant.[40]Mr Luik decided to speak to nine people during the adjournment of the appeal hearing, including Sophia Bragan who said that when she had been spoken to previously about the claimant she had told the truth. Mr Doherty was interviewed and confirmed to Mr Luik that he had interviewed people who had relevant information in terms of the decisions that he had to make. Lucas Kennelly said that he had had nothing to add to his previous statement and Mark Booth was asked about the process of ‘unleashing.’[41]Mr Luik shared the interview transcripts with the claimant and he did not receive any response from him. Mr Luik wrote to the claimant with the outcome of the appeal on 26 September 2024 and provided detailed reasons for his decision. He upheld Mr Doherty’s decision to dismiss the claimant.[42]On 19 September 2024, the claimant received an outcome to the grievances that he had raised. He appealed the decision on 22 September 2024 and was invited to an appeal hearing which was postponed at the claimant’s request. A decision was subsequently taken by the respondent, to deal with the grievance appeal on the papers. Mr Luik heard the grievance appeal because he was familiar with the claimant’s circumstances. The appeal was partially upheld.[43]Due to an administrative error, the claimant was paid £18,704.80 by way of company sick pay. From 31 August 203 to January 2024, the respondent intended to pay him statutory sick pay. He was notified on 20 February 2024 of the overpayment and that his pay would revert back to statutory sick pay.[44]The respondent has a sickness absence policy in which entitlement to sick pay is set out. The respondent has a discretionary company sick pay scheme for those who have worked for the respondent for more than three months. There are a number of conditions attached to company sick pay and a number of exclusions. The exclusions include situations where employees call in sick after they have been into an investigation meeting under the disciplinary policy, have been suspended, have called in sick after being told about a disciplinary or sickness absence meeting. There was no evidence before the tribunal regarding a custom and practice of paying company sick pay in all circumstances and it would be surprising if that were the practice given the exclusions set out in the sickness absence policy. The tribunal does not find that the respondent pays company sick pay in all circumstances. Law Unfair dismissal[45]The relevant legislation is set out in Section 98(1) Employment Rights Act 1996 (ERA). The respondent relies on the potentially fair reason of conduct (Section 98(2)).[46]The reason for the dismissal is the set of facts or beliefs held by the employer which caused the dismissal. The Tribunal may only take account of those facts or beliefs that were known to the employer at the time of the dismissal: W Devis & Sons Ltd v Atkins (1977) ICR 662.[47]Section 98(4) sets out that where the employer has shown the reason for the dismissal and that it is a potentially fair reason, the determination of the question whether the dismissal was fair will depend upon whether in the circumstances (including the size and administrative resources of the employer’s undertaking), the employer acted reasonably in treating it as a sufficient reason for dismissing the employee, and must be determined in accordance with equity and substantial merits of the case.[48]The threefold test for fairness in conduct dismissals was established in British Home Stores v Burchell (1980) ICR 303 as explained in Sheffield Health & Social Care NHS Foundation Trust v Crabtree (2009) UKEAT 0331:(a) The employer must show that he believed the employee was guilty of misconduct.(b) The tribunal must be satisfied that he had in his mind reasonable grounds upon which to sustain that belief and,(c) The tribunal must be satisfied that at the stage at which the employer formed that belief on those ground he had carried out as much investigation into the matter as was reasonable in the circumstances.[49]The tribunal must have regard to the ACAS Code of Practice for Disciplinary and Grievance Procedures.[50]Whether or not the investigation was reasonable is a matter for the tribunal to determine. The tribunal will ask itself whether the investigation adopted fell within the range of reasonable responses and was one that a reasonable employer might have undertaken, Sainsburys Supermarkets v Hitt (2003) IRLR 23. The tribunal was directed to the case of Gormley v City of York Council case number 1804128/2023 which is a first instance decision which set out that if insufficient questions are asked of witnesses then the investigation can be unreasonable. The tribunal was also directed to Stuart v London City Airport Ltd [2013] EWCA Civ 973 where it was held that allegations involving dishonesty attract a higher bar for the reasonableness of the investigation.[51]The tribunal should also apply the ‘reasonable response’ principle to the decision to dismiss and decide whether the action taken by the employer was within the band of reasonable responses, Iceland Frozen Foods v Jones (1982) IRLR 430 and Post Office v Foley (2000) IRLR 827.[52]The tribunal should consider the reasonableness of the employer’s conduct not whether the tribunal considers the dismissal to be fair. In judging the reasonableness of the employer’s conduct, the tribunal must not substitute its decision as to what was the right course to adopt for the employer. It is widely recognised that in many cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, and another quite reasonably will take a different view. The tribunal should decide in the particular circumstances whether the decision to dismiss fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within that band, in accordance with Iceland, it ought to be regarded as fair.[53]The ‘range of reasonable responses test’ was highlighted in Wilko Retail Ltd v Gaskell [UKEAT/0191/18/BA]. The decision included a reminder that the test should extend to questions of consistency, and providing the assessment by the dismissing manager was one which a reasonable employer could have made, a tribunal should not interfere with the decision to dismiss.[54]The claimant directed the tribunal to consider the first instance decision of Ogden v Booker Limited case number 2400482/2024 as an example of isolated acts of swearing in an informal setting which were held not be considered as gross misconduct.[55]Any defects in the original hearing and pre-dismissal procedures may be remedied on appeal. The tribunal should assess the disciplinary process as a whole and where procedural deficiencies occur at an early stage, the tribunal should closely examine the subsequent appeal hearing particularly its procedural fairness, thorough approach and open-mindedness of the decision maker, Taylor v OCS Group Ltd (2006) IRLR 613 CA.[56]Where a dismissal is found to be unfair by reason of procedural defects, the fact that the employer might have dismissed the employee in any event goes to the question of remedy and compensation ought to be reduced to reflect that fact as established in Polkey v Dayton Services Ltd (1988) ICR 142. In Ms M Whitehead v Robertson Partnership UKEAT 0331/01 guidance was provided for the tribunal in their deliberations on this issue:(a) What potentially fair reason for dismissal if any might emerge as a result of a proper investigation and disciplinary process?(b) Depending on the principal reason for any hypothetical future dismissal, would dismissal for that reason be fair or unfair. If conduct is the reason might the respondent have reasonable grounds for their belief in such misconduct?(c) Even if a potentially fair dismissal was available to the respondent would he in fact have dismissed the Appellant as opposed to imposing some lesser penalty and if so would that have ensured the Appellant’s continued employment?[57]Where unfair dismissal is found Section 122(2) ERA provides that where the tribunal finds that any conduct by the claimant before the dismissal was such that would be just and equitable to reduce the amount of the basic award, the tribunal must reduce that amount accordingly. Further Section 123(6) ERA provides that where the tribunal finds that the claimant caused or contributed by any action to the dismissal it must reduce the amount of the compensatory award by such proportion as it deems to be just and equitable. Wrongful dismissal[58]If an employer dismisses an employee in breach of contract, there will be a wrongful dismissal. If the respondent did not have reasonable grounds to dismiss the claimant he would be entitled to 12 weeks’ notice pay. Unlawful deductions from wages[59]Section 13(1) ERA sets out the right not to suffer unlawful deductions from wages. The claimant’s position is that he had a contractual right to contractual sick pay because of an implied term established by custom and practice that contractual sick pay was always paid to employees and therefore that contractual sick pay was properly payable to him. In failing to pay the claimant in respect of five months’ contractual sick pay it was alleged that there had been an unlawful deduction from the claimant’s wages. Counter-claim[60]The respondent counter-claimed in respect of the sum of £18,704.80 in respect of company sick pay paid to the claimant for the period 31 August 2023 to January 2024. It was entitled to bring the counter-claim by virtue of the Employment Tribunals Extension of Jurisdiction (England and Wales) Order 1994 SI 1994/1623 based on the claimant having brought a wrongful dismissal complaint.[61]The basis for the counter-claim was that the claimant should have been aware that the respondent was entitled to recover an overpayment and referred to the claimant’s contract of employment and the respondent’s policies. Conclusions[62]The claimant contended that that his dismissal was unfair on the following grounds: that the respondent had no reasonable belief that he committed gross misconduct and that the allegations had been raised in bad faith by fraudulent employees; that the respondent did not conduct a reasonable investigation because it lasted 11 months and did not interview key witnesses; and that dismissal was outside the band of reasonable responses because the respondent did not dismiss other employees who had mis-sold warranties.[63]The tribunal rejects the contention that the respondent did not have a reasonable belief that the claimant had committed gross misconduct. Mr Doherty, the dismissing officer’s evidence was clear and accepted by the tribunal that he did have a reasonable belief that the claimant had committed gross misconduct based on a detailed investigation. His conclusions were set out in detail in the dismissal letter and demonstrate that he did have a reasonable belief in the claimant’s guilt which was tested in crossexamination.[64]Further investigations were carried out at the appeal stage by Mr Luik who also held a reasonable belief that the claimant had committed gross misconduct. The appeal officer undertook further investigations as requested by the claimant and could find no basis on which to overturn the decision. The tribunal accepts his evidence that he approached the appeal with an open mind and would have been prepared to overturn the decision had he found evidence which demonstrated the wrong decision had been made.[65]The claimant asserts that the investigation was unreasonable. The tribunal does not agree with this assessment. It is possible that further investigations could have been made, as in any investigation. However, the investigations that took place were reasonable in all the circumstances which included that additional matters came to light after the initial matters had been uncovered and after the claimant commenced sick leave. The tribunal does not agree that key witnesses were not interviewed. A large number of people were interviewed at the investigation stage and additional people were interviewed at the disciplinary and appeal stages.[66]The tribunal is concerned about the length of time it took for the investigation to conclude. However, there were a number of issues being investigated and there was some delay on both sides. The claimant did not state at any stage that he felt that the delay made the overall process unfair. The tribunal accepts that more issues came to light after the claimant had gone on sick leave. The investigation could, and probably should, have been conducted more quickly but there are valid reasons why it was not. It does not mean that the investigation overall was unreasonable.[67]The claimant contends that the dismissal was outside the band of reasonable responses because the respondent did not dismiss other employees who had mis-sold warranties. The claimant was a General Manager and alleged that he was treated inconsistently with two individuals in particular – Ms Campbell and Mr Marshall – both of whom were less senior than the claimant. These individuals were both given final written warnings for misconduct in relation to mis-selling. Part of the mitigation they put forward is that they were acting under the claimant’s direction. The claimant was more senior and was found to have committed multiple acts of misconduct not just in relation to mis-selling. The circumstances are therefore not the same. The respondent’s evidence was that another General Manager had been dismissed for mis-selling and that evidence is accepted by the tribunal. However, the claimant was dismissed in respect of multiple allegations.[68]The tribunal has reminded itself that it must not substitute its own view for that of the employer. The tribunal concludes that the decision to dismiss the claimant was within the band of reasonable responses open to a reasonable employer who had conducted a reasonable investigation. The complaint of unfair dismissal is not well-founded and is dismissed.[69]The claimant was summarily dismissed for gross misconduct in circumstances where the respondent was entitled to dismiss him for gross misconduct. The complaint of wrongful dismissal is not well-founded and is also dismissed.[70]The claimant’s complaint in respect of unlawful deductions from wages regarding payment of company sick pay is not well-founded and is dismissed. The respondent has a discretion as to whether it pays company sick pay or not as set out in the respondent’s sickness absence policy. The claimant has not established that there was a custom and practice of paying company sick pay in all circumstances. The burden is on the claimant to show that there is an implied term established by custom and practice and he has not done so. The express term in the respondent’s policy makes it clear that company sick pay is discretionary and that there are circumstances where it will not be paid, including where an employee goes off sick in the context of an investigation as was the situation in respect of the claimant.[71]The respondent counter-claims in respect of a payment made in error. The tribunal was not provided with the specific contractual clause relied on by the respondent to advance the counter-claim. The respondent relies on the claimant being aware or that he should have been aware that the respondent was entitled to recover the overpayment. There was an administrative error by the respondent in circumstances where there was discretion on the respondent’s part about whether it would pay contractual or statutory sick pay. In these circumstances the tribunal finds that the counter-claim is not well-founded and is dismissed.[72]All of the complaints are dismissed and the issue of remedy therefore does not arise.[73]The respondent made an application for costs dated 3 March 2025. The claimant has 14 days from the date this judgment is sent to the parties to provide representations in writing regarding that application, including whether it can be dealt with in writing or whether a costs hearing is necessary. Employment Judge Platt 21 March 202526 March 2025 ........................................................................................................... ........................................................................................................... FOR EMPLOYMENT TRIBUNALS