Claimant v Asda Stores Limited
Outcome
Individual claims
The tribunal found the respondent genuinely believed the claimant was guilty of misconduct (using profanity in front of a customer and her grandchildren), had reasonable grounds for that belief (claimant admitted the conduct), conducted a reasonable investigation, and dismissal fell within the band of reasonable responses for gross misconduct that damaged the respondent's reputation.
The claimant could not prove he was owed wages. The evidence showed he had been paid correctly for March and April 2024, and could not establish any specific underpayment.
The respondent was under no legal obligation to pay for holidays unused at the end of the holiday year (31 March 2024) as the policy required holidays to be taken in-year. Evidence showed the claimant had taken his full entitlement (weeks in November, December 2023, February 2024, and the last two weeks of March 2024 treated as paid leave) and was paid all he was due.
Facts
The claimant was a delivery driver for Asda from November 2020 to May 2024. On 27 April 2024, a customer complained that he swore in front of her and her grandchildren after injuring his hand on her gate, threw down shopping baskets, and was unpleasant. The claimant admitted swearing once but said it was because he hurt his hand. He was summarily dismissed for gross misconduct on 6 May 2024 following investigation and disciplinary hearing. He also claimed he was owed wages and holiday pay relating to difficulties accessing the new payroll system and accruing leave near the end of the holiday year.
Decision
The tribunal dismissed all claims. The dismissal was fair: the respondent genuinely believed the claimant committed misconduct, had reasonable grounds (claimant's admission), conducted adequate investigation, and dismissal fell within the band of reasonable responses for conduct damaging customer relations. The claimant failed to prove any unlawful wage deduction or unpaid holiday pay; evidence showed he had taken and been paid for his full holiday entitlement in the 2023-24 holiday year.
Practical note
An employer may fairly dismiss for gross misconduct where an employee uses profanity in front of customers (including children), even if there are mitigating circumstances like pain from injury, provided the Burchell test is met and dismissal falls within the band of reasonable responses.
Legal authorities cited
Statutes
Case details
- Case number
- 8001120/2024
- Decision date
- 19 February 2025
- Hearing type
- full merits
- Hearing days
- 2
- Classification
- contested
Respondent
- Sector
- retail
- Represented
- Yes
- Rep type
- barrister
Employment details
- Role
- Delivery driver
- Service
- 4 years
Claimant representation
- Represented
- No