In the case of Mr S Mohammad v Tesco Stores Limited (ET/1303590/2018) the Employment Tribunal held that the failure to check why an employee had not attended a rescheduled disciplinary hearing rendered the dismissal procedurally unfair.
The facts in Mr S Mohammed v Tesco Stores Limited
Mr S Mohammed (the ‘Claimant’) was employed by Tesco Stores Ltd (the ‘Respondent’) as a warehouse team member (a forklift truck driver) at the Respondent’s warehouse in Daventry.
On 20 December 2017 a female colleague made a complaint that she had been sexually harassed by the Claimant a couple of hours earlier. She alleged that the Claimant had followed her in his truck and made a sexual gesture with his tongue and that he had a history of pursuing her. For example, she alleged that over the last couple of years he had been calling her “sexy” on Facebook and asking people if he could be her boyfriend. She also stated in her complaint that she had asked him to stop but that he had not done so.
The Claimant was called into a meeting following the complaint and asked if he knew the woman in question; he was shown a photo but denied knowing her. In the following investigation Facebook messages that were purportedly from the Claimant were produced to the Respondent by the female colleague who had made the complaint.
A further investigation meeting took place in February 2018 where the issue of the Facebook messages and account were discussed, along with the allegations of inappropriate comments he had made. The allegations against the Claimant were considered as possible gross misconduct and it was stated that the matter would be referred to a disciplinary hearing. The Claimant was subsequently suspended on full pay.
The Claimant was, in a letter dated 11 January 2018, invited to a disciplinary hearing and informed the disciplinary allegations were likely to be considered as potential gross misconduct.
The Claimant was signed off work unfit during this period and the disciplinary hearing was, as a result, rescheduled to 16 February 2018. As a result of the Claimant’s sickness absence the meeting was rescheduled again to 22 March 2018. The Claimant was told that if he didn’t attend this meeting then the meeting would proceed as scheduled and a decision would be made in his absence. This letter letter was sent by Recorded Delivery.
The Claimant did not attend the meeting on 22 March 2018 and so the meeting proceeded in his absence. There was no evidence of any attempts by the Respondent to call the Claimant or to check whether the Recorded Delivery letter had been received. The Claimant’s union representative attended without the Claimant and the chairman of the hearing decided, after reviewing the evidence, that the allegations were made out. It was further decided that the Claimant’s conduct amounted to gross misconduct. The Claimant was summarily dismissed on 22 March 2018, and he was notified of such by way of a letter dated 27 March 2018. This letter also informed the Claimant that he had a right to appeal against the dismissal.
The Claimant appealed against the dismissal, and said that he did so by way of He was given a right of appeal. He said he received the dismissal letter on 6 April 2018 and appealed the same day: his only stated ground of appeal was that he had not received notice of the disciplinary hearing that had taken place on 22 March 2018, that no-one had called him, and that he was signed off work sick at the time. He did not, however, appeal against the findings made.
The disciplinary appeal hearing took place on the 27 April 2018 with the Claimant attending. The meeting was adjourned to check the position with regard to the invite letter and reconvened on 3 May 2018.
The Respondent confirmed that it didn’t appear that the letter had been delivered but it upheld its decision to dismiss the Claimant based on his failure in challenging the specific allegations. This decision was confirmed on 3 May 2018 by letter of the same date. The Claimant was offered a further right of appeal but did not exercise this right.
The decision of the Employment Tribunal
The Employment Tribunal held that the Claimant had been unfairly dismissed based on the mishandling of the disciplinary process: the failure to check whether the Claimant had received the notice of the disciplinary hearing (of 22 March 2018) or to call him to check why he had not attended was unfair.
The Employment Tribunal dismissed the Claimant’s claim for unlawful deduction from wages.
Our solicitors’ views on the case of Mr S Mohammed v Tesco Stores Limited
Mel Chin, a Legal Executive at Redmans, commented on the case: “The failure of the employer to follow its own internal disciplinary procedures correctly resulted in a procedurally-unfair dismissal – this is another lesson for employers that they must exhaust all internal disciplinary proceedings fully before reaching a decision to dismiss an employee.”
The decision of the Employment Tribunal in Mr S Mohammad v Tesco Stores Limited (ET/1303590/2018) can be found here.