Customer assistant dismissed for gross misconduct: fair process despite delays
A Tesco customer assistant with 10 years' service was fairly dismissed for gross misconduct after making racist comments, the tribunal ruled, rejecting claims of race discrimination and victimisation.
1 min read · Last updated 18 May 2026
Case details
- #race-discrimination
- #victimisation
- #whistleblowing
- #gross-misconduct
- #right-to-be-accompanied
- #res-judicata
- #delayed-investigation
Key facts
- The claimant was employed as a Customer Assistant from 28 November 2010 to 17 August 2020.
- Three colleagues complained in August 2019 that the claimant made racist and offensive comments.
- The claimant repeatedly refused to attend investigation meetings and delayed the process.
- The claimant was summarily dismissed for gross misconduct on 17 August 2020.
- The claimant's first claim was withdrawn and dismissed under Rule 52, barring some claims.
- The tribunal found the dismissal was for conduct, not race or protected disclosures.
Timeline
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Claimant raised bullying complaint
The claimant complained of bullying by three colleagues, but later withdrew the complaint.
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Colleagues complained about claimant
Three colleagues made a written complaint alleging the claimant made racist and offensive comments.
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First investigation meeting invitation
The claimant was invited to an investigation meeting but did not attend.
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Claimant attended meeting but refused to participate
The claimant attended an investigation meeting but demanded a union representative and left early.
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Claimant raised complaint against managers
The claimant complained about the investigation process and lack of union representation.
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Investigation meeting with new investigator
The claimant met with Mr Petrides and was given details of the allegations.
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Disciplinary hearing and dismissal
The claimant was dismissed summarily for gross misconduct after refusing to engage.
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First claim withdrawn
The claimant withdrew his first claim (3307908/2020).
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Appeal hearing
The claimant's appeal was heard by Ms Alexander.
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Appeal hearing resumed
The appeal hearing continued and the claimant signed notes of the second session.
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First claim dismissed under Rule 52
Employment Judge Lewis dismissed the first claim upon withdrawal.
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Second claim presented
The claimant presented the present claim (3313501/2020).
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Preliminary hearing on res judicata
Employment Judge Frazer struck out some claims but allowed dismissal-related claims to proceed.
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Final hearing commenced
The tribunal heard evidence over five days.
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Judgment dismissing all claims
The tribunal dismissed all remaining claims, finding the dismissal fair and not discriminatory.
The legal issue
The tribunal had to decide whether the dismissal was fair, whether it was automatically unfair because of protected disclosures, and whether it amounted to direct race discrimination or victimisation.
The outcome
The tribunal dismissed all remaining claims, finding the dismissal fair and not discriminatory.
- The claimant was dismissed for gross misconduct after three colleagues complained about racist comments.
- The claimant refused to attend investigation meetings and delayed the process.
- The tribunal found Tesco had a genuine belief in the misconduct and acted reasonably.
- No compensation was awarded as the respondent won.
Lessons & takeaways
- Cooperating with an employer's investigation is crucial; refusal to engage can weaken your case.
- Length of service does not automatically make a dismissal unfair if the misconduct is serious.
- Withdrawing a claim and then bringing a new one on similar facts may be barred by res judicata.
- Employers should ensure investigations are thorough, but delays caused by the employee can be taken into account.
What this case shows in practice
This case illustrates that even a long-serving employee can be fairly dismissed for gross misconduct if the employer follows a reasonable process. The claimant, a customer assistant with 10 years' service, was accused by three colleagues of making racist and offensive comments. Despite the serious nature of the allegations, the claimant repeatedly refused to attend investigation meetings, demanded a union representative, and left meetings early. This behaviour delayed the process significantly.
What the losing side could have done differently
The claimant could have engaged with the investigation from the outset. By refusing to cooperate, he gave Tesco little choice but to proceed based on the evidence available. The tribunal noted that the employer's investigation was reasonable and that the decision to dismiss was within the range of reasonable responses. The claimant also made allegations of race discrimination and victimisation, but the tribunal found no evidence to support these claims.
Why the result matters for similar claims
This case reinforces that tribunals will look at the overall fairness of the process, not just the outcome. Delays caused by the employee can be weighed against the employer. It also highlights the risk of bringing multiple claims that overlap: the claimant's first claim was withdrawn and dismissed under Rule 52, which barred some of the later claims. Employees considering tribunal action should be aware of the res judicata principle, which prevents re-litigating the same issues.
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