Asda Worker’s Dismissal for Gross Misconduct Found Unfair After Flawed Investigation

Published : November 7, 2025

In Mr Jordan Wainwright v Asda Stores Ltd, an optical adviser has succeeded with his employment tribunal claim after it was ruled he faced unfair dismissal for gross misconduct. Mr Wainwright was sacked without notice after he shared a colleague’s Facebook profile with customers. The tribunal found, however, that his employer hadn’t undertaken a reasonable investigation, leading to an unreasonable view, and had also conducted a flawed disciplinary process.

Read on as we uncover what happened and the reasoning behind the tribunal’s judgment. We examine what constitutes a fair disciplinary investigation in the workplace and the steps to take if rights are breached.

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The Facts in Mr Jordan Wainwright v Asda Stores Ltd

Background to the Dismissal for Gross Misconduct

Mr Jordan Wainwright (“the Claimant”) worked as an optical adviser for Asda Stores Ltd (“the Respondent”) from 23 May 2018. While his induction included data protection training, he received no further training on the matter, nor notification about legislation updates.

The central issue in this case arose on 6 September 2024, when two customers approached the Claimant. They wanted to make a complaint about a colleague and sought their name. After the Claimant searched the Respondent’s database and found who he believed to be the individual described, he provided the customers with their first name and a brief description.

The Suspension and Investigation

A colleague who witnessed the Claimant’s customer interaction reported it to Mr Kalid Cook, the Respondent’s food hall trading manager. This led to his suspension on full pay while an investigation occurred, resulting in an investigatory meeting on 16 September.

During the meeting, the Claimant was informed that it was occurring to “investigate a breach of GDPR.” He was shown CCTV footage of the 6 September incident before he confirmed that he’d only provided information that was publicly available and simply wanted to ensure that the wrong person didn’t get in trouble.

Nonetheless, the Respondent stated, “Do you not see this as being something that could go against policies such as the social media policy and data protection?” While the Claimant agreed, he replied, “I admit I was in the wrong, but I did it for the right reasons.” He reasoned that he would usually take such matters to a manager, but explained how the customers didn’t want to. By the meeting’s conclusion, he apologised, asserting that he’d learned his lesson and that it wouldn’t happen again.

Claimant Faces Dismissal for Gross Misconduct

On 7 October, the Claimant was invited to attend a disciplinary hearing scheduled for two days later. The invitation stated that the hearing concerned an allegation of gross misconduct and advised that dismissal was a possible outcome. However, it didn’t specify the details of the alleged incident, nor did it indicate that dismissal could be without notice or inform the Claimant of his right to be accompanied.

At the disciplinary hearing’s conclusion, the Claimant was informed of his dismissal for gross misconduct without notice. While the Respondent acknowledged the Claimant’s apology, it nonetheless found that his conduct breached its policies and constituted gross misconduct, warranting immediate dismissal.

This decision was confirmed to the Claimant in writing, in a letter dated 14 October. He then appealed the decision a week later, before clarifying his appeal on both 25 October and 18 November. Among his complaints, the Claimant argued that the decision to dismiss him was too harsh, that the information he disclosed was publicly available, and that his colleague had, too, shared his personal information with a customer without his consent, yet faced no punishment.

Unfortunately for the Claimant, his appeal proved unsuccessful. This was confirmed in writing on 13 March 2025, where the Respondent reasoned that no new evidence had been put forward to justify the Claimant’s conduct, which it believed amounted to gross misconduct. As a result, he pursued employment tribunal proceedings, claiming that he’d been unfairly dismissed from work.

The Employment Tribunal’s Judgment

Dismissal for Gross Misconduct? Tribunal Confirms Dismissal Reason

Following the proceedings, the employment tribunal first looked to determine the Respondent’s reason for dismissing the Claimant. The Respondent argued that it was the Claimant’s breach of its policies by disclosing the personal information of a colleague to customers, which constituted gross misconduct.

However, the tribunal found that there was more to the decision than this. It stated that the Respondent believed the Claimant had deliberately shared the colleague’s personal information to cause them trouble. Accordingly, it ruled that the principal reason for dismissal was misconduct, namely the malicious misuse of personal information.

Findings on the Investigation and Procedure

Moving on, the tribunal addressed whether the Respondent genuinely believed the Claimant was guilty of said offence. It was quickly determined that this was the case, and consequently, the focus shifted to whether this belief was reasonably held and whether a reasonable investigation had followed.

On this point, the tribunal noted that the Respondent failed to provide the Claimant with the opportunity to respond to the allegation that he deliberately showed customers his colleague’s Facebook profile to cause trouble—this was despite the point being central to the Respondent’s dismissal for gross misconduct decision.

Furthermore, the Respondent wrongly assumed that public Facebook profiles always disclose a person’s full name and didn’t consider the Claimant’s limited training on data protection. As such, the tribunal concluded that a reasonable investigation in the workplace hadn’t occurred and, thus, the belief was unreasonable.

Concerning the Respondent’s procedure, the tribunal found further significant failures. The Respondent failed to disclose that summary dismissal was a potential outcome, didn’t provide the complete reasoning for why the Claimant was dismissed for gross misconduct, and didn’t give his appeal “due consideration.”

Then, with regard to the dismissal itself, the tribunal held that it wasn’t within the range of reasonable responses to dismiss the Claimant. The Respondent had failed to consider mitigating factors, such as his previous clean six-year disciplinary record, and other possible sanctions, including a final written warning. It also had “no evidential basis” for believing that the Claimant had acted maliciously.

Outcome and Remedy

The tribunal ultimately ruled that the Claimant had been unfairly dismissed from work, upholding his claim. Notably, though it acknowledged that there was a 25% chance he would have been dismissed anyway, and found it “just and equitable” to reduce both his subsequent basic and contributory awards by 50% for contributory fault. The case will now proceed to a further hearing to determine his remedy.

What is a Fair Disciplinary Investigation in the Workplace?

In the above case, part of the reason the dismissal for gross misconduct was unfair was because of the investigation. A fair disciplinary investigation involves a fact-finding process, carried out following accusations of misconduct or poor performance. Its purpose is to assemble all relevant evidence, ensure fair treatment, and determine whether a disciplinary response is justified.

What to Do if You Believe Your Rights Have Been Breached

If an employee believes their dismissal for gross misconduct was unfair, there are several steps they can take to seek redress. The first is to gather as much evidence as possible to support their case, including correspondence, meeting notes, and copies of any disciplinary documents. They should then explore internal resolution options, such as an informal discussion with their manager or by raising a formal grievance in line with the employer’s policy.

If the issue remains unresolved, Acas early conciliation is typically the next step. This free and impartial service helps both parties attempt to settle the matter before formal legal action becomes necessary. Starting this process also pauses the tribunal claim deadline, allowing individuals to pursue both routes in parallel.

Where conciliation is unsuccessful, the final step is to bring a claim before an employment tribunal. Employees must meet specific eligibility requirements and adhere to strict time limits. If successful, a tribunal may award compensation or other remedies, providing a formal resolution to an unfair dismissal.

Get Help with Redmans

If you believe you’ve been unfairly dismissed for gross misconduct, contact Redmans Solicitors now. Our team of employment experts are here to help, and following a brief consultation, we can provide specialist advice.

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