Customer assistant unfairly dismissed after flawed theft investigation
A Marks and Spencer customer assistant with nine years' service was unfairly dismissed for alleged theft after a seriously flawed investigation. The tribunal awarded £10,309.86.
1 min read · Last updated 18 May 2026
Case details
- #gross-misconduct
- #flawed-investigation
- #layaway-transaction
- #cctv-evidence
- #admission-misinterpreted
Key facts
- The claimant was dismissed for gross misconduct after allegedly taking goods without payment.
- The investigation failed to check whether the goods were still in the store fridge.
- The claimant admitted failing to pay for a layaway but did not admit taking goods from the store.
- The dismissing officer did not ask the claimant if she had taken goods from the store.
- The investigation relied on a witness whose earlier CCTV analysis was proven wrong.
- The tribunal found the investigation was seriously flawed and the dismissal unfair.
Timeline
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Employment started
Claimant began working as a Customer Assistant at Marks and Spencer's Southend store.
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Alleged incident
Claimant used a self-checkout till and a layaway transaction; later accused of not paying for items.
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Concern identified
Respondent identified two transactions as suspicious.
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Investigation meeting
Claimant interviewed by Emily Garrod; admitted failing to pay for layaway but not theft.
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Investigation letter
Emily Garrod sent letter maintaining allegations including dishonest behaviour.
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Disciplinary hearing
Hearing before Jennifer Dobson; claimant explained layaway payment failed and items were in fridge.
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Dismissal
Claimant summarily dismissed for gross misconduct (theft).
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ET1 presented
Claimant presented unfair dismissal claim to tribunal.
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Liability hearing
Tribunal heard evidence and found dismissal unfair.
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Judgment on liability
Employment Judge Wilkinson issued judgment finding unfair dismissal.
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Remedy hearing
Tribunal awarded £10,309.86 in compensation.
The legal issue
The tribunal had to decide whether the employer's investigation into alleged theft was reasonable and whether the dismissal for gross misconduct was fair under section 98 of the Employment Rights Act 1996.
The outcome
The tribunal found the dismissal unfair. The investigation was seriously flawed: it did not check whether the goods were still in the store fridge, the dismissing officer did not ask the claimant if she had taken goods, and the investigation relied on a witness whose earlier CCTV analysis was proven wrong. The claimant's admission of failing to pay for a layaway was misinterpreted as admitting theft.
Compensation:
- Basic award: £1,908.36
- Compensatory award: £8,401.50
- Total: £10,309.86
Lessons & takeaways
- Employers must conduct a reasonable investigation before dismissing for misconduct — failing to check key evidence like whether goods are still on the premises is a red flag.
- A claimant's admission to one thing (e.g., failing to pay for a layaway) should not be assumed to be an admission of theft without further questioning.
- Relying on a witness whose earlier analysis was proven wrong undermines the reasonableness of the investigation.
- Dismissing officers should directly ask the employee about the specific misconduct alleged, not rely on assumptions from other statements.
What this case shows in practice
A customer assistant with nine years' service was dismissed for gross misconduct after allegedly taking goods without payment. The investigation focused on two transactions, but key evidence was overlooked. The store had a fridge where layaway items could be kept, and the claimant said the goods were there. The investigation never checked. The dismissing officer also failed to ask the claimant directly whether she had taken goods from the store, instead relying on an admission about a layaway payment failure.
What the employer could have done differently
Marks and Spencer could have avoided this outcome by conducting a more thorough investigation. Checking the fridge would have confirmed or refuted the claimant's explanation. The investigating officer should have clarified the claimant's admission — she admitted failing to pay for a layaway, not theft. The dismissing officer should have asked directly about the alleged theft. The investigation also relied on a witness whose CCTV analysis was later shown to be incorrect, which undermined the entire process.
Why this result matters
This case reinforces that tribunals will scrutinise the quality of an investigation, not just the employer's belief in guilt. Even where there is an admission of some wrongdoing, the employer must still investigate the specific misconduct alleged. For employees facing similar allegations, this case shows that a flawed investigation can make a dismissal unfair, even if the employer acted in good faith.
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