Claimant v Asda Stores Limited
Outcome
Individual claims
The tribunal found the respondent's belief in the claimant's gross misconduct was not reasonably held, the investigation was inadequate, the procedure was unfair, and the decision to dismiss was outside the range of reasonable responses. Key failings included not putting the allegation of malicious intent to the claimant, not investigating whether he shared first or full names, not providing training records, and failing to consider mitigation properly.
The tribunal found the claimant's actions did not amount to deliberate wrongdoing or gross negligence sufficient to constitute a repudiatory breach justifying summary dismissal. His conduct, though misconduct, was intended to help customers and avoid the wrong colleague being blamed, and he had apologised throughout. The actions were not sufficiently serious to justify termination without notice.
Facts
The claimant, an Optical Adviser employed by Asda for 6 years, showed customers the Facebook profile picture of a colleague and provided two colleagues' full names to assist customers who wanted to complain directly to head office and refused to speak to an in-store manager. The claimant's intention was to ensure the correct colleague was identified. He was summarily dismissed for gross misconduct (misuse of personal information) on 9th October 2024. The disciplinary process concluded his actions were malicious to get colleagues into trouble, though this allegation was never put to him during investigation, disciplinary or appeal. His appeal was significantly delayed (5 months) and the appeal officer wrongly believed he could only overturn the decision if new evidence was presented.
Decision
The tribunal found the dismissal unfair because the respondent's belief in gross misconduct was not reasonably held, the investigation was inadequate (key allegations not put to claimant, training records not checked), the procedure was unfair (breaches of ACAS Code), and summary dismissal was outside the range of reasonable responses given the lack of malicious intent and available mitigation. The wrongful dismissal claim also succeeded as the conduct was not sufficiently serious to justify summary dismissal. Awards reduced by 25% (Polkey) and 50% (contributory fault), with 15% ACAS uplift on compensatory award. The basic award reduced by 50% for contributory fault.
Practical note
Even where an employee admits conduct falling within a gross misconduct policy category, employers must properly investigate intent, consider all mitigation, and put all key allegations to the employee before deciding summary dismissal is justified — particularly where the employee had no recent training on the policy and the conduct may not have been deliberate wrongdoing.
Adjustments
25% chance the claimant would have been fairly dismissed in any event if a fair procedure had been followed
Claimant's conduct in sharing colleagues' full names and Facebook profile picture, and not following complaints procedure, was blameworthy and contributed to dismissal
Respondent unreasonably failed to comply with ACAS Code: did not inform claimant of possibility of summary dismissal in invite letter, failed to provide witness statements in advance, did not fully explain reasons for dismissal, and appeal was not conducted impartially
Legal authorities cited
Statutes
Case details
- Case number
- 1801290/2025
- Decision date
- 9 October 2025
- Hearing type
- full merits
- Hearing days
- 1
- Classification
- contested
Respondent
- Sector
- retail
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- Optical Adviser
- Service
- 6 years
Claimant representation
- Represented
- Yes
- Rep type
- barrister