REWARD
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. “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” 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.
| Professional in Payroll, Pensions and Reward | July - August 2024 | Issue 102 40
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