The Claimant was dismissed after 15 years of good and loyal services, for eating company stock.
The Claimant worked at a small store owned by the Respondent. The Respondent had a policy, common in the industry, stating that any consumption of company property required the prior purchase of the goods and should only be done during break times. Any unauthorised consumption of company food on company premises to be considered gross misconduct.
The Claimant took 2 twirls out of an opened pack she found at the till. She ate one of them and handed one to a customer’s child. She was suspended for consuming company property without paying for it.
The Respondent claimed that the Claimant had been asked to reduce and repair damaged stock left at the check-outs and that the opened pack of twirls was part of those items to be “fixed” and discounted. As such the Respondent believed that the Claimant knew the chocolates to be company property and she was dishonest in failing to purchase them first via the correct channels. She was dismissed for gross misconduct, for “taking a product and consuming it without making payment”.
The Claimant argued that she had not been asked to repair and reduce stock but only to hang up sweets. She thought this damaged pack of twirls belonged to a colleague. She explained that it was common practice for colleagues to leave treats lying around for the team to share and as such specific permission did not need to be sought. She accepted that she should not have been eating whilst on duty, but that the practice was also relatively rife. She admitted to taking the treat but denied any deceptiveness. She felt she was being treated inconsistently as leniency had previously been applied for similar incidents.
Was the Claimant dismissed for a potentially fair reason?
In line with section 98(1) of the Employment Rights Act 1996, the employer must show that the principal reason for the dismissal is a reason falling within section 98(2) or some other substantial reason of a kind such as to justify the dismissal of the employee in the circumstances.
The Claimant admitted to eating the pack of sweets whilst on shift and whilst there is a dispute as to the more detailed elements of the offence, this was sufficient to satisfy the Tribunal that the Respondent had indeed dismissed the Claimant based on the genuine belief that she had committed misconduct.
Was it reasonable in all the circumstances for the Respondent to dismiss the Claimant for misconduct?
In making that determination the Tribunal is not expected to substitute its own view to that of the Respondent but instead to look at whether, considering the size and administrative resources of the employer, the decision to dismiss was reasonable, and in accordance with equity and the substantial merits of the case.
In British Homes Stores Ltd v Burchell (1980), the EAT held that the employer must show that:
- He believed the employee was guilty of misconduct
- He had reasonable grounds upon which to base this belief
- He had carried out a reasonably throughout investigation into the matter
The penalty of dismissal must be within the band of reasonable responses opened to the employer.
The Tribunal found that the decision to dismiss the Claimant was unfair.
The Respondent had failed to properly investigate the Claimant’s assertion that it was common practice for sweets to be left open at the till, without a receipt in sight. The Respondent also failed to appropriately investigate the Claimant’s allegation that she was being treated inconsistently. The Tribunal felt that her length of service and clear disciplinary record had not been given adequate weight.
The Respondent attempted to argue that service or clear record should not be relevant in a case of “theft”, however there was insufficient evidence to back up a finding of theft and indeed “theft” was not what the Claimant had been dismissed for. The Tribunal also noted that the disciplinary officer had adjourned the hearing for all of 12 minutes (!) before reconvening and issuing an outcome.
As part of the investigations, one witness initially stated that she had asked the Claimant to tidy the stock. However, when asked a leading question by the investigating officer at a later stage, she amended her position to say that she had asked the Claimant to “repair and reduce” the stock.
It is interesting to note that whilst the Tribunal was complimentary of the relatively thorough work undertaken by the appeal officer, it deemed that it had been too late then to rectify the key errors made throughout the investigative process. For instance, whilst the appeal officer did attempt to investigate whether it was a common (if not formally authorised) practice to eat sweets lying around at the tills, it was by then unreasonable to expect fellow staff members to admit to such (mis)conduct, given the fate befallen to the Claimant. Finally, the Tribunal found that whilst the Respondent did have a policy around purchasing and eating stock on duty, it was not applied consistently and as such did not create a solid enough base to justify this dismissal.
Ultimately, whilst the Tribunal was satisfied that whilst the Claimant had breached the policy by eating on duty, she had also been honest and consistent in her explanations and as such the dismissal was disproportionate to the matter at hand.
Isabelle Shankar, HR Consultant at EML, comments:
“This case reminds us of a few key principles in handling dismissals fairly:
- Matters should be investigated thoroughly at the start. It may be too late to do it on appeal.
- The investigating officer should question contradictory statements and avoid leading questions. After all this is a search for the truth through what should be an open and transparent process.
- Drafting allegations requires careful consideration, balancing the evidence available and the potential outcome. The Claimant was not dismissed for theft, but for eating stock prior to purchasing it. Theft could have led to a fair dismissal, but the evidence was not there to support that stance. Dismissing the Claimant for eating stock, in the circumstances, was not proportionate.
- The decision to dismiss someone should not be rushed and instead be carefully considered.
- Policies can only be safely relied on insofar as they are being applied and enforced in practice. One should be mindful of relying on a policy that is being loosely interpreted and haphazardly applied.
And let’s not forget common sense! Is an employee of 15 years found to be eating on duty really someone who cannot be trusted to remain in employment, with the right sanction and ongoing checks in place?”