Warehouse operative unfairly dismissed after mitigation ignored in conduct case
An employment tribunal found ASDA unfairly dismissed a warehouse operative with 18 years' service after failing to investigate his mitigation evidence, awarding £14,817 in compensation.
2 min read · Last updated 18 May 2026
Case details
- #gross-misconduct
- #contributory-conduct
- #acas-code-uplift
- #reinstatement-refused
- #mitigation
- #pension-loss
- #sharesave-loss
Key facts
- The claimant was dismissed for deliberately driving a Low Level Order Picker into a colleague's vehicle.
- The tribunal found the dismissal was unfair because the respondent failed to investigate the claimant's mitigation evidence.
- The claimant contributed to his dismissal by 45% due to his conduct.
- The claimant found alternative employment with DHL two weeks after dismissal and remained employed there.
- The respondent failed to comply with the ACAS Code by not investigating the claimant's mitigation, leading to a 10% uplift.
- The tribunal refused reinstatement and re-engagement due to breakdown of trust and confidence.
Timeline
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Incident leading to dismissal
The claimant deliberately drove his LLOP into Adrian Stretton's LLOP, causing damage, and confronted Stretton.
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Dismissal
The claimant was dismissed without notice for gross misconduct.
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New job offer
The claimant was offered a role with Pertemps at DHL's Daventry site.
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Started new employment
The claimant began working for DHL through Pertemps.
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Auto-enrolled in pension
The claimant was auto-enrolled into Pertemps' pension scheme.
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Became direct employee of DHL
The claimant was taken on by DHL as a permanent direct employee.
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Liability judgment
The tribunal found the claimant was unfairly dismissed with 45% contributory conduct.
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First remedy hearing
The tribunal ordered basic award of £7,180.80 and refused reinstatement/re-engagement.
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Second remedy hearing
The tribunal heard evidence on compensatory award.
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Second remedy judgment
The tribunal awarded compensatory award of £14,817.21 after uplift and reduction.
The legal issue
The tribunal had to determine the appropriate compensatory award for unfair dismissal, including loss of earnings, pension loss, and benefits, and whether to apply an ACAS Code uplift for the employer's failure to investigate mitigation.
The outcome
The tribunal found that ASDA unfairly dismissed the claimant because it did not investigate his mitigation evidence before deciding to dismiss him for deliberately driving a Low Level Order Picker into a colleague's vehicle. The claimant was found to have contributed to his dismissal by 45% due to his conduct.
Compensation breakdown:
- Basic award: £7,180.80
- Compensatory award: £14,817.21
- ACAS Code uplift of 10% applied for failure to investigate mitigation
- 45% reduction for contributory conduct applied to both awards
Lessons & takeaways
- Employers must investigate any mitigation evidence an employee puts forward before deciding to dismiss, even in clear-cut misconduct cases.
- Failure to follow the ACAS Code of Practice can result in an uplift of up to 25% on compensation.
- Long-serving employees may have stronger claims if the employer fails to follow proper procedure, as their length of service can make the dismissal outside the range of reasonable responses.
- Contributory conduct can significantly reduce compensation, so employees should be aware that their own actions may affect the award.
What this case shows in practice
This case illustrates how even a clear act of misconduct can lead to an unfair dismissal finding if the employer fails to properly consider the employee's side of the story. The claimant, a warehouse operative with 18 years' service, admitted deliberately driving his vehicle into a colleague's vehicle during a confrontation. However, ASDA dismissed him without adequately investigating his mitigation, which included allegations that the colleague had been lying and that there was a history of workplace issues.
The tribunal found that while the claimant's conduct was serious, the employer's failure to investigate the mitigation put the dismissal outside the range of reasonable responses. This highlights that procedural fairness is not just a box-ticking exercise—employers must genuinely consider all evidence, including any explanations or mitigating factors the employee offers.
What the losing side could have done differently
ASDA could have avoided this outcome by conducting a more thorough investigation. The dismissing manager did not interview the claimant about his mitigation or seek to verify his account. A reasonable employer would have at least considered the claimant's version of events before concluding that dismissal was appropriate. Additionally, ASDA failed to comply with the ACAS Code of Practice on disciplinary procedures, which requires employers to investigate fully before making a decision. This failure led to a 10% uplift on the compensatory award.
Why the result matters for similar claims
For employees, this case demonstrates that even if you have admitted misconduct, you may still have an unfair dismissal claim if your employer did not give you a fair hearing. The 45% reduction for contributory conduct shows that the tribunal will take the employee's own blame into account, but it does not automatically defeat the claim. The ACAS uplift also serves as a reminder that employers who cut corners on procedure may pay a penalty.
For employers, the case reinforces the importance of following proper procedures, especially when dealing with long-serving employees. A failure to investigate mitigation can turn a potentially fair dismissal into an unfair one, with significant compensation consequences.
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