11 June 2024

Nicola Mullineux, senior employment specialist for Peninsula, looks at the interesting outcomes of three recent dismissal cases heard in the courts


Should the value of stolen goods be considered in dismissal decisions?

Is it fair to dismiss an employee for stealing ‘bags for life’, or should the value of the item stolen make a difference? That was the question the employment tribunal (ET) had to consider in the case of Doffou v Sainsbury’s Supermarkets Limited.

After working a night shift, the claimant did some personal shopping which included buying food, pillows and bedding. The claimant paid for the shopping using the self-checkout but didn’t pay for the multiple reusable ‘bags for life’ even though they’re a chargeable item.

An investigation meeting took place, and the claimant was shown CCTV footage of him at the till taking the bags and selecting ‘0’ when asked how many bags were taken. The claimant was then invited to a disciplinary hearing and made aware beforehand that the outcome could result in dismissal. When the CCTV footage was reviewed again with the claimant at this hearing, he stated that he didn’t intend to steal the bags. In mitigation he said that stress, tiredness and a language barrier had contributed to the error.

The respondent, however, concluded that the claimant had not acted in error but instead had been dishonest and deliberately not paid for the bags. The claimant could be seen on the CCTV going backwards and forwards to collect the bags to put the bulky items in. He could also be seen selecting the ‘no bag’ option at the self-checkout and carefully reviewing the receipt as he was walking out. The respondent concluded that they could no longer trust the claimant, even though the bags didn’t cost as much as the shopping, so dismissed him for gross misconduct. The claimant appealed but the original outcome was upheld because the appeal officer agreed that the failure to pay for the bags wasn’t a mistake.

The claimant brought a claim for unfair dismissal arguing that the decision fell outside the range of reasonable responses, that not enough weight was given to the mitigation and that the investigation and appeal were procedurally unfair.

The ET found that a fair procedure was carried out by the respondent throughout the investigation, disciplinary hearing and appeal. The CCTV and the receipt clearly showed that the claimant took the ‘bags for life’ without paying for them. The respondent was entitled, the ET held, to find that the claimant had committed an act of misconduct, even though the bags had a low monetary value. Accordingly, the ET held that the dismissal was procedurally and substantively fair, so the claimant lost his claim.

This case shows that theft, whatever the monetary value, is theft. So, whether it’s a ‘bag for life’ worth pennies or thousands of pounds that’s taken, it’s still an act of misconduct.

What’s also important to remember is that even if there’s a fair reason to dismiss, a tribunal will still look at whether a fair procedure has been followed throughout.

 

Employer fails to consider employee’s disability before dismissal

The ET, in the case of Muir v Astra Zeneca UK Ltd, had to decide whether the respondent had fully considered the claimant’s disability before taking the decision to dismiss him.

Concerns of bullying and harassment were informally made against the claimant, who had depression and anxiety, regarding the wording of emails and because he raised his voice when interacting with colleagues. There wasn’t an issue with the content of what was said, but the way in which it was said.

After concerns were raised informally, an investigation was carried out, followed by a disciplinary hearing during which it was noted that the claimant’s “…inability to stay calm was limited”. The claimant was ultimately dismissed for gross misconduct and the way in which he behaved in the disciplinary hearing was noted as being a material factor in the decision. While the claimant appealed, the original decision was upheld.

The claimant then brought claims for unfair dismissal, wrongful dismissal / notice pay and discrimination arising from a disability.

The ET found that during the discussions with colleagues, while they were about work, the claimant conducted themselves in a forceful way. The medical evidence confirmed that his underlying stress and inability to manage uncertainty resulted in him behaving in this way with colleagues. The ET, therefore, concluded that the claimant was dismissed because of his behaviour which was linked to his disability. This meant that the discrimination arising from a disability claim was successful.

The unfair dismissal claim was considered next by the ET. It found that the reason for dismissal was ‘conduct’ which is a potentially fair reason. It then had to decide whether the dismissal was fair in all the circumstances.

Even though the investigating officer interviewed several witnesses, the ET didn’t accept that the investigation was thorough. This was because no further enquiries were made regarding the claimant’s mental health, despite concerns being raised about his state of mind by colleagues. At the disciplinary stage, and on appeal, there was again a failure to consider that the claimant’s disability could have affected his behaviour. The ET, consequently, didn’t accept that the decision to summarily dismiss was a sanction that was within the range of reasonable responses and so, the unfair dismissal claim was also successful. This meant that the wrongful dismissal claim also succeeded because the claimant was entitled to the notice pay that he hadn’t received when he was dismissed for gross misconduct.

The case will now proceed to a remedy hearing for a decision on the amount of compensation the claimant is entitled to because of the ET’s findings. What we do know, however, is that in relation to the unfair dismissal claim there will be an uplift of 10% to the award because of the respondent’s failure to follow the Advisory, Conciliation and Arbitration Service (Acas) Code of Practice on disciplinary and grievance procedures. When the claimant appealed the decision, the appeal chair decided to meet with the disciplining officer on two occasions without the claimant knowing and before the appeal hearing took place. The ACAS Code states that the appeal should be impartial. While the appeal chair wasn’t previously involved in the disciplinary process, the meetings held with the disciplinary chair meant that the appeal was no longer impartial.

 

Employee unfairly dismissed for interfering with food use-by dates

The ET, in the case of Ms R Lino v EG Group Ltd, was tasked with deciding whether the claimant, who crossed out the use-by dates on food, was unfairly dismissed.

When a food safety check was carried out at the store where the claimant was the manager, several issues were identified. Containers were found with no labels showing when they had first been used, nor the use-by date; some containers had the use-by date entirely blocked out by a marker pen; and a sign was found which said “All ingredients are ready here!! Don’t take from the fridge”, with an arrow pointing down.

Following an investigation, the claimant was invited to a disciplinary hearing. The allegation put to the claimant was “serious breach of food safety – specifically, failing to remove out of date food items from sale”. However, this hearing didn’t take place. When the claimant was invited to a rescheduled disciplinary, a different allegation was raised which was “serious breach of food safety – specifically, failing to remove out of date food items from sale and amending dates fraudulently”. At the hearing, when asked any questions, the claimant answered, “no comment”.

The claimant was dismissed for gross misconduct. The outcome letter referred to the original allegation “serious breach of food safety – specifically, failing to remove out of date food items from sale”. The respondent concluded that the expiry dates were crossed out by the claimant for personal gain because it would reduce ‘wastage’ so that the store’s figures, and the claimant as the manager, looked better.

The claimant accepted that she had written the sign and drawn the black mark on the items but argued it was her way of showing other employees that the items should be thrown away. The ET, however, could not understand why the claimant would take the time to mark the products rather than just get rid of them, nor why it involved covering up the ‘use-by’ date. The ET found, therefore, that the respondent had a genuine belief that the claimant was guilty of a serious breach of food safety, by failing to remove out of date items from the store.

But the ET held that the conclusion the respondent reached wasn’t the allegation that was investigated, nor the one put to the claimant. The allegation investigated was that the claimant had failed to remove out of date food items from sale, which was a serious breach of food safety. However, the finding, which was more serious than the allegation put to the claimant, was that she had crossed out the dates to reduce wastage on site for personal gain because it would improve the wastage figures of the store.

The ET, therefore, held that the claimant had been unfairly dismissed.

The ET went on to consider whether the claimant contributed to the dismissal because of her actions. By marking the items and obscuring the dates, the claimant created a safety risk because the products could have been used after the use-by dates had expired.

The claimant’s conduct was, therefore, found to have caused and contributed to the dismissal and so the ET decided that the basic and compensatory award should be reduced by 100%. While the claimant was unfairly dismissed because the procedure followed was flawed, she didn’t receive any compensation because of her conduct. 


 

This article featured in the July - August 2024 issue of Professional.