From time to time we tell you about a Birmingham employment law case we have recently dealt with. Our other stories are here. This is the story of Ken’s gross misconduct dismissal from a national supermarket after 35 years of service.

Ken was the Store Manager. One aspect of his duties was overseeing the processing of stock, and more particularly the recording of stock that couldn’t be sold at full price (‘disposals’). Ken would review disposals made by his team, and where possible re-code the items to remove them from the disposal category. This was what he had been trained to do.

Ken’s employer accused him of wrongly re-coding stock that could be sold, as stock that couldn’t be sold, losing the store money and giving it inaccurate figures. They claimed he was doing this to improve his KPIs and therefore his bonus. He was suspended, and an investigation was carried out. Ken received a letter inviting him to a disciplinary hearing, only now he was accused of losing, whether directly or indirectly (via his staff) £20,000. Ken was dismissed, but on appeal this was replaced with a final written warning and a demotion. Ken rejected the demotion and resigned with notice.

We found that Ken’s employer failed to get to grips with the issues; they didn’t investigate his claim that he had followed training to the letter and so the employer failed to get the decision right. They ignored the fact that his bonus didn’t depend on these KPIs. And they failed to understand that if he miscategorised stock, it made one statistic go higher but the other one go lower, a neutral net effect.

We helped Ken bring a claim of unfair dismissal in the Employment Tribunal on the basis that the employer behaved unfairly both in terms of their disciplinary procedure and the severity of the sanction – a gross misconduct dismissal that would be on his record.

He got a job at another supermarket, where he is happy, but at half his previous salary and his losses would be over £150k over a couple of years.

We had a strong hunch that the employer would not want to put this gross misconduct dismissal case before a judge and advised him to hold out to the bitter end and go to a tribunal hearing if necessary. Just before the final hearing, after some heavy negotiation, Ken received an offer near to the maximum that the law allows.

By Zahid Reza

Image used under CC courtesy of Polycart.