Cases→1404110/2023

Claimant v Asda Stores Limited

19 July 2024Before Employment Judge MurdochBristolin person

Outcome

Claimant fails

Individual claims

Unfair Dismissalfailed

The tribunal found the employer had a genuine belief based on reasonable grounds that the claimant was guilty of gross misconduct (harassment). The investigation was reasonable, the procedure was fair, and the decision to dismiss fell within the band of reasonable responses. The claimant showed no remorse and did not accept his behaviour was problematic, presenting a risk of repetition.

Facts

The claimant worked as a warehouse colleague for ASDA for almost 15 years with a clean disciplinary record. On 5 February 2023, he touched a female colleague twice after she asked him not to touch her. Four witnesses gave evidence about the incident. Following investigation, disciplinary hearing, and two separate appeals, the claimant was dismissed for gross misconduct (harassment). The claimant denied the incident occurred or constituted harassment, showed no remorse, and raised concerns about historic pay issues and previous managers, though these were unrelated to the dismissal.

Decision

The tribunal found the dismissal was fair. The employer had a genuine belief based on reasonable grounds that the claimant committed harassment. The investigation was thorough, the procedure was fair with two appeal stages, and the decision to dismiss fell within the band of reasonable responses. The claimant's lack of remorse and failure to accept his behaviour was problematic justified the employer's concern about risk of repetition.

Practical note

An employer can fairly dismiss for harassment based on unwanted physical contact even where the employee has long service and a clean record, particularly where the employee shows no remorse and does not accept the seriousness of their behaviour.

Legal authorities cited

Burchell 1978 IRLR 379London Ambulance Service NHS Trust v Small 2009 IRLR 563Sainsbury's Supermarkets Limited v Hitt 2003 IRLR 23Iceland Frozen Foods Limited v Jones 1982 IRLR 439Post Office v Foley 2000 IRLR 827

Statutes

ERA 1996 s.98(1)ERA 1996 s.95ERA 1996 s.94ERA 1996 s.98(4)ERA 1996 s.98(2)

Case details

Case number
1404110/2023
Decision date
19 July 2024
Hearing type
full merits
Hearing days
2
Classification
contested

Respondent

Name
Asda Stores Limited
Sector
retail
Represented
Yes
Rep type
barrister

Employment details

Role
Warehouse Worker / Colleague
Service
15 years

Claimant representation

Represented
Yes
Rep type
lay rep
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