ASDA Stores Ltd v Raymond

In a conduct dismissal, the employer must formulate the charge precisely and conduct a reasonable investigation into the facts and alleged rule breaches. The range of reasonable responses applies to the investigation and procedure as well as the sanction.

For discrimination arising from disability under section 15 of the Equality Act 2010, identifying potentially legitimate aims does not establish justification. The employer must provide evidence enabling the tribunal to decide that dismissal was a proportionate means of achieving those aims.

On reinstatement, a tribunal may scrutinise whether the particular employer's asserted loss of trust and confidence is genuinely and rationally held. An irrational assertion of breakdown does not make reinstatement impracticable.

The claimant, a lorry driver with type 2 diabetes, was summarily dismissed after urinating in a shared loading yard. The employer treated the conduct as gross misconduct, alleging breaches of health and safety requirements, trust and confidence, and company property obligations.

The Employment Tribunal at Huntingdon held that the dismissal was unfair and was unfavourable treatment arising from disability. In a later remedy judgment it rejected the employer's objective-justification case and ordered reinstatement. The employer appealed both decisions, principally challenging the Tribunal's treatment of CCTV evidence, the section 15 justification issue, and reinstatement.

1. Appeals dismissed. The Employment Tribunal was entitled to find that the CCTV evidence did not establish that the claimant had urinated on pallets or trays. That factual conclusion was available on the evidence and could not be impugned as perverse.

2. The charge was not simply urination in the yard. It alleged consequential breaches of trust and confidence, health and safety requirements, and company property obligations. The employer had not investigated the applicable requirements, the factual circumstances, or the relation between the claimant's urgent need to urinate and his disability. The Tribunal was therefore entitled to find that the employer lacked a reasonable belief in guilt and that dismissal fell outside the range of reasonable responses. The range test governed the investigation and procedure as well as the sanction: [2013] IRLR 107.

3. The Tribunal should initially have addressed the pleaded issue of objective justification. Its later remedy judgment, however, adequately rectified that omission. Although health and safety and protection of reputation might be legitimate aims, the employer had adduced no material evidence of a relevant safety or reputational risk, or that dismissal was proportionate when the disability was the operative cause of the conduct. The statutory defence under section 15 of the Equality Act 2010 consequently failed.

4. Reinstatement was practicable. The Tribunal was entitled to assess the employer's claimed loss of trust and confidence in the particular employment relationship and to find that it was not rationally held. The claimant had acted honestly during the process, his disability caused the predicament, there was no contributory conduct, and vacancies and agency-driver arrangements showed that reinstatement could be effected. The Tribunal was entitled to conclude that trust and confidence could be restored.

• Employment Appeal Tribunal: Dismissed the employer's appeals against the Employment Tribunal's liability judgment of 26 May 2017 and remedy judgment of 11 September 2017.
• Employment Tribunal at Huntingdon: Held the dismissal unfair and contrary to section 15 of the Equality Act 2010; rejected objective justification and ordered reinstatement.