Wrongful dismissal claim succeeds as Tesco admits conduct was not gross misconduct
A Tesco night-shift customer assistant who was dismissed for gross misconduct has won his wrongful dismissal claim after the tribunal found he was entitled to notice pay. He was awarded £400.
1 min read · Last updated 18 May 2026
Case details
Key facts
- The claimant was employed as a Customer Assistant from 16 December 2018 until dismissal on 23 June 2020.
- The respondent accepted the claimant had PTSD and depression but only became aware of the disability on 27 May 2020.
- The claimant alleged a racist comment was made by his store manager on 15 April 2020, but the tribunal found it did not occur.
- The claimant was dismissed for gross misconduct, but the respondent later accepted the conduct did not amount to gross misconduct.
- The tribunal found the claimant was entitled to one week's notice pay of £400.
- All discrimination and harassment claims were dismissed.
Timeline
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Employment commenced
Claimant started as a full-time Customer Assistant at Tolworth Express store.
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Lets Talk discussion
Gopi and Pradesh held a discussion about a fuel incident; claimant complained to store manager.
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Alleged comment
Claimant alleged Pradesh said 'you sound like a mental person'; tribunal found it did not happen.
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Alleged racist comment
Claimant alleged Pradeep made a derogatory comment about his community; tribunal found it did not occur.
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Complaint against claimant
Shift leader Desmond Rasanayagam submitted a complaint about the claimant's conduct.
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Claimant's email to HR
Claimant sent email to Nina Buckell raising complaints; respondent accepted this as a protected act.
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Investigation meeting
Meeting with Farhan Riaz; claimant became unwell and meeting was adjourned.
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Disability disclosed
Claimant sent GP letter to respondent disclosing PTSD and depression.
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Disciplinary hearing
Claimant dismissed for gross misconduct.
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Dismissal confirmed
Outcome letter sent to claimant.
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Appeal hearing
Appeal meeting adjourned to allow union representation; claimant did not pursue further.
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Claim presented
Claimant presented his claim to the Employment Tribunal.
The legal issue
The tribunal had to decide whether the claimant was wrongfully dismissed (entitled to notice pay) and whether he was discriminated against on grounds of disability or race, harassed, or victimised.
The outcome
The tribunal upheld the claimant's wrongful dismissal claim, finding he was entitled to one week's notice pay of £400 because the conduct relied on did not amount to gross misconduct.
All other claims – including disability discrimination, race discrimination, harassment, and victimisation – were dismissed. The tribunal found that the alleged racist comment did not occur, and that Tesco did not have knowledge of the claimant's disability until late May 2020, and there was no evidence of discrimination.
Compensation:
- Notice pay: £400
Lessons & takeaways
- If an employer dismisses for gross misconduct but later accepts the conduct did not warrant it, the employee may be entitled to notice pay.
- Length of service matters: with less than two years' service, the claimant could not bring an unfair dismissal claim, but wrongful dismissal (breach of contract) is still available.
- Allegations of discrimination must be supported by evidence; tribunals will scrutinise whether alleged comments actually occurred.
- Employers should ensure they have up-to-date knowledge of an employee's disability before making decisions that could affect them.
What this case shows in practice
A night-shift customer assistant at a Tesco Express store was dismissed for gross misconduct after a complaint from a shift leader. The employee had less than two years' service, so he could not claim unfair dismissal. However, he brought a wrongful dismissal claim, arguing that his conduct did not amount to gross misconduct and that he was entitled to notice pay.
The tribunal agreed. Tesco itself later accepted that the conduct did not justify summary dismissal. The employee was awarded one week's notice pay – £400.
What the losing side could have done differently
Tesco could have avoided this claim by properly assessing whether the employee's conduct was truly gross misconduct before dismissing him. If they had recognised it as a lesser disciplinary matter, they could have given notice or pay in lieu, avoiding the wrongful dismissal finding.
Why this result matters for similar claims
This case is a reminder that even short-service employees have rights under their contract of employment. If an employer gets the classification of misconduct wrong, they may still be liable for notice pay. It also shows that discrimination claims can be difficult to prove without clear evidence – the tribunal found no racist comment occurred and no disability discrimination, as Tesco only learned of the disability shortly before dismissal.
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