A Tesco sales assistant who had worked at the supermarket for 26 years was unfairly dismissed after she was “erroneously” declared absent without leave while she was on holiday, a tribunal has ruled.
The London South Croydon tribunal found Julie Churcher was unable to respond to the letters inviting her to disciplinary hearings, nor could she appeal her eventual dismissal, because she was away.
Tesco accepted the dismissal was based on a belief Churcher was not on annual leave and offered to re-engage her. But, while her decision to reject the offer was not “unreasonable”, the tribunal said Churcher did not mitigate her losses as she claimed “shops were shut” in the pandemic.
Her claims of breach of contract, unauthorised deduction from wages and unfair dismissal were upheld.
The tribunal heard that Churcher was employed as a customer assistant, self service at the Tesco Brooklands Extra, Weybridge in August 1993, until her dismissal on 10 March 2020.
Tesco told the tribunal that on or around 23 February 2020, Churcher failed to attend work and attempts were made to contact her.
As a result, on 2 March, Churcher was invited to a disciplinary hearing by post as she was AWOL, but she did not attend. Another hearing was scheduled and she was again invited by post, but did not attend.
It was decided Churcher was guilty of gross misconduct and she was summarily dismissed without notice, with a week to appeal – which Churcher did not do.
However, the tribunal explained that Tesco accepted it dismissed Churcher in the “erroneous belief” she was absent without leave, as she was actually on holiday.
The tribunal said Churcher was “clearly very aggrieved” as she was abroad on agreed annual leave from 23 February onwards, alongside “agreed leave, shift swaps and unpaid leave” and did not return home until 19 March. She also claimed “three managers had colluded in dismissing her”.
The tribunal also noted that Tesco offered Churcher re-engagement in a letter on 1 December at the same store, on the same terms, with the payment of wages from her dismissal, and also made this offer to her through Acas.
Churcher claimed she did not receive the letter, nor did she get an offer through Acas. Tesco also offered her re-engagement during the tribunal hearing, which she rejected.
Employment judge Philip Tsamados said it was “unlikely” Churcher would have accepted re-engagement even if she did receive the letter, and said this was not an “unreasonable position” for her to take.
But Tsamados did not believe Churcher had mitigated her loss as she claimed she could not find work during lockdown because “shops were shut”, so only awarded her six months’ lost earnings.
“I take the view that had [Tesco] conceded liability sooner [Churcher] would not have incurred these expenses,” he added.
Churcher was awarded £4,934.18.
Employment lawyer’s reaction
Alan Lewis from Constantine Law said: “The claim succeeded because after the claimant withdrew her discrimination claims the respondent admitted liability for the remainder of the claims, namely unfair dismissal, breach of contract and unlawful deduction from wages.
“Although the tribunal was not required to make findings on this point, because the unfair dismissal claim was admitted by Tesco, it would appear from the reported facts that had Tesco tried to defend that claim, there may well have been a finding that there were no reasonable grounds on which to base the dismissal decision and/or there was no reasonable investigation before dismissing the claimant.”
Lewis said the lessons for HR were to:
Have a clear and traceable system for recording authorisations for employee leave.
Make sure any verbal authorisations are followed up by recording in writing.
Additionally, Monica Atwal, managing partner at Clarkslegal, said the case was an example of “process failure”, which is a “risk, especially with larger multi-site employers, and we are all reliant on computer records”.
“There are a number of salutary lessons in this case,” she added. “An employer should ask: is this conduct out of character? As most employers show genuine concern when an employee does not turn up to work, and the process should allow time to provide an explanation.”
However, she commended the employer for admitting liability on the unfair dismissal claim – “mistakes happen”, Atwal said. “They also offered re-engagement. But judgment is also a reminder that remedy requires analysis of all heads of losses and the need for evidence on each element.”
Tesco has been contacted for comment. Churcher could not be reached.