Mark Brennan M&S WRC Decision: The Legal Test Behind the Unfair Dismissal Finding

The Mark Brennan M&S WRC decision is more revealing than a simple “employee wins unfair dismissal case” headline suggests.

Marks & Spencer Ireland had a clear staff-discount policy, investigated unusual transactions, held a disciplinary hearing, provided an appeal and used experienced managers throughout.

The Workplace Relations Commission nevertheless found the dismissal unfair because the final sanction was disproportionate to what Brennan himself had actually done.

That distinction matters for employers. A disciplinary process can be procedurally strong and still produce an unfair outcome if dismissal is not proportionate to the conduct established.

Brennan had worked as a sales adviser since 1 August 2014. He was a part-time employee working 19 hours a week and earning €1,679 a month.

His employee-discount credentials were used 73 times between 31 October and 17 December 2024 across different locations, sometimes almost simultaneously.

Only one transaction was linked to Brennan personally. The discounts were worth €464.39 — approximately £394 in contemporary UK reporting.

Brennan said his then domestic partner had copied the discount details from a tablet without his knowledge and shared them with relatives and acquaintances.

He accepted that he had been careless with the tablet, but denied deliberately giving other people access to the benefit.

The Case File, Not Just the Headline

The formal case was ADJ-00057991, with complaint reference CA-00070004-001. Brennan submitted the unfair-dismissal complaint on 14 March 2025.

The internal and legal timeline was:

• 8 January 2025: Store manager Mr S conducted the investigation. Brennan was represented by Mr Caffrey of Mandate.
• 17 January 2025: The disciplinary hearing was originally scheduled.
• 4 February 2025: After postponement for operational and availability reasons, the disciplinary hearing took place before store manager Ms CA.
• 6 February 2025: Brennan’s employment ended following the dismissal decision.
• 26 February 2025: Senior store manager Ms CB heard Brennan’s appeal, again with Mr Caffrey representing him.
• 7 March 2025: Ms CB issued a detailed written appeal outcome rejecting the appeal.
• 14 March 2025: The WRC received the complaint.
• 24 February 2026: The adjudication hearing was held. Brennan was represented by Eoin Coates of Mandate, while Judy McNamara of IBEC represented Marks & Spencer Ireland.
• 29 June 2026: Adjudicator Michael McEntee’s decision was dated.

The result therefore came more than 16 months after Brennan’s employment ended and about 15 months after the WRC complaint was lodged.

For a small employer, that gives useful context on how long a contested dismissal can continue to require records, management attention and legal preparation.

Why M&S Had a Genuine Disciplinary Issue?

This was not a case where the employer invented a concern after the event. M&S treated its colleague discount as a major employee benefit.

Around 70,000 employees across Ireland and the UK were eligible for the scheme, so controlling misuse had significance beyond one store or one worker.

Physical discount cards had also been phased out in favour of a mobile app. That detail matters because Brennan said the app credentials had been copied from a tablet accessible to his then partner.

The policy was described as being for employee use only, and deliberate or careless misuse could potentially amount to gross misconduct.

The WRC recorded that anti-abuse rules were extensively communicated and that Brennan knew the terms.

For employers dealing with similar allegations, whether gross misconduct always leads to dismissal is the crucial next issue: a policy classification does not automatically make dismissal proportionate in every factual situation.

M&S also had objective reasons to investigate. Seventy-three uses in about six weeks, transactions in different geographic locations and near-simultaneous activity were obvious anomalies.

Brennan offered to reimburse the employer for its financial loss once the problem came to light.

The Three Questions the Adjudicator Actually Asked

McEntee did not simply ask whether Brennan had been treated harshly.

First, had natural justice been followed? The answer was yes.

Second, was the underlying conduct serious enough to justify disciplinary action? The evidence supported the employer taking the matter seriously.

Third, was dismissal itself — the “nuclear option” — proportionate? It was on this final question that M&S lost.

That nuance is central. The adjudicator praised the company’s HR procedures and found that experienced managers had operated them properly.

Ms CB, who heard the appeal, had more than 20 years’ service and gave detailed evidence about why she considered the “bond of trust” irretrievably broken. Her written appeal decision was also described as showing careful consideration.

A sound process, however, did not automatically make the sanction sound.

The Legal Tests Behind the Decision

McEntee’s reasoning drew on several employment-law authorities rather than a general sense of sympathy.

Frizelle v New Ross Credit Union [1997] IEHC 137 supplied a five-point natural-justice approach.

In practical terms, a disciplinary complaint must be genuine and fairly stated; the employee’s version must be obtained and put before the decision-maker; the decision must flow from factual evidence on the balance of probabilities; and dismissal must be proportionate to the gravity of the complaint and its effect on the employee.

Foley v Post Office [2000] ICR 1283 reinforced that a tribunal does not simply replace an employer’s decision with its own. The question is whether the investigation and response were reasonable.

Iceland Frozen Foods v Jones [1983] ICR 17 supplied the “band of reasonableness” principle.

Hennessy v Read and Write Shop Ltd UD192/1978 framed reasonableness around three matters: the nature and extent of the investigation, whether procedures were fair and reasonable, and whether the conclusion reached was reasonable.

M&S also relied on Looney & Co Ltd v Looney UD843/1984 and Knox Hotel and Resort UD27/2004 to argue that an adjudicator should not second-guess a properly conducted employer process.

Those authorities explain why the case was not decided simply because Brennan had long service or because the discount loss was limited.

The WRC accepted the integrity of the process, then separately tested whether dismissal was a reasonable and proportionate conclusion.

Carelessness Was Established; Deliberate Abuse Was Not

That separation between employee fault and sanction ultimately decided the case.

Brennan did not leave with a finding that he had behaved perfectly. He admitted being careless with the tablet, and the adjudicator found that he had “contributed significantly” to the events that led to his dismissal.

But Brennan’s sworn evidence was that he did not know his partner had copied the discount permission and circulated it among family and acquaintances.

The WRC considered it excessive to make him effectively responsible, to the point of dismissal, for another person’s misuse when his own established wrongdoing was careless access.

McEntee considered that a serious alternative sanction, including a final written warning, could have protected the discount scheme without ending the employment relationship.

This distinction also matters when considering how long gross misconduct stays on an employment record. “Careless handling of access” is not automatically the same factual finding as deliberate benefit fraud, even where both begin as gross-misconduct allegations.

Why the €2,000 Award Looks Different Once Pay Is Added?

The compensation can look surprisingly low unless Brennan’s working pattern and later employment are included.

His stated pay was €1,679 per month for a 19-hour week.

The WRC started with redress of €4,000, described as slightly more than two months’ pay, then reduced it by 50% because Brennan’s carelessness contributed significantly to the dismissal.

The final award was €2,000 gross, approximately £1,699.

The WRC also recorded that Brennan obtained comparable work with a competing retailer on 7 April 2025.

His possible income loss between the two jobs was calculated at €4,600. M&S had also paid him six weeks’ full notice pay, which the adjudicator noted favourably.

The award therefore does not mean the disciplinary concern was trivial. It reflects proportionality, Brennan’s mitigation of financial loss and his own contribution to the events.

The Practical HR Point Small Employers Should Take Away

The strongest lesson is not “never dismiss over staff-benefit misuse”. It is that an employer should identify exactly what it has proved about the employee before selecting the sanction.

For a business operating discount schemes, expense cards, fuel cards, purchasing accounts, customer credits or other employee-linked benefits, four questions should be recorded separately: who actually used the benefit, what the employee knew, what security responsibility the employee breached, and why the chosen sanction matches that employee’s conduct.

A policy can say careless misuse may be gross misconduct. A large-scale scheme can justify strict safeguards. A manager can genuinely believe trust has broken down.

None of those points removes the need to explain why dismissal, rather than a final warning or another serious sanction, falls within a reasonable response to the facts proved.

The Mark Brennan ruling is therefore most useful as a reminder that procedure, proof and penalty are separate stages.

M&S succeeded on procedure and had legitimate grounds to investigate. It lost on the proportionality of the final penalty.

For small businesses, that is the point worth retaining: a disciplinary process should not stop at “did something go wrong?” It should finish with the harder question — “What exactly did this employee do, and does that finding justify this particular sanction?.