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make reasonable adjustments in the ways alleged by the claimant. As a result, the ET ruled in favour with the claimant and made a declaration in their favour. In relation to injury to feelings, the ET assessed that the award should be at the bottom of the middle Vento band. It awarded them a total of £24,005.63 in compensation, covering lost earnings, injury to feelings and interest. Employee unfairly dismissed for taking and eating chewing gum from warehouse In the case of Moraru v Boohoo.com UK Ltd, the ET had to consider whether dismissing an employee for taking and eating chewing gum (that was intended for customers) from the warehouse was fair. The claimant was employed by the respondent as a warehouse operative. The claimant is Romanian. The respondent had a disciplinary policy which included a list of “offences” that it stated would be treated as gross misconduct. The list included “theft or fraud.” Although the respondent had a rule that food isn’t to be consumed in the warehouse, many employees helped themselves to chewing gum and consumed it while at work. This included team leaders and members of management. The claimant believed that it was available for general consumption by staff so they would take it and put it under the stairs. Someone found the chewing gum and the claimant was brought to a meeting and accused of theft. The claimant argued that their conduct wasn’t theft because they didn’t take the chewing gum off the premises. However, they were dismissed for gross misconduct for theft. The claimant brought claims for unfair dismissal, direct race discrimination and breach of contract for not giving them notice of termination or payment in lieu of notice. The tribunal had to consider whether the respondent acted reasonably or unreasonably in all the circumstances, considering the respondent’s size and administrative resources, in deciding to dismiss the claimant for gross misconduct. The tribunal found that on balance, at the time it took the decision to dismiss the claimant, the respondent had a genuine belief that the claimant was guilty of misconduct. However, although the respondent had reasonable grounds
for believing that the claimant had taken and stored the chewing gum under the stairs, it didn’t, in the tribunal’s view, have reasonable grounds for concluding that this amounted to gross misconduct or theft. The claimant didn’t seek to hide or cover up what they’d done and was honest and open throughout the disciplinary process. Their behaviour was consistent with a genuine belief that eating the chewing gum was acceptable and common practice. The claimant stated very clearly from the outset that they didn’t believe what they were doing was wrong. They also said, in support of their assertion, that there was no restriction on taking and eating the chewing gum and that many people were doing it, including team leaders and managers. The tribunal said that an employee cannot, in the tribunal’s view, be criticised for doing something they believe is acceptable behaviour because it’s common practice, including among those in authority. The tribunal went on to say that, while it accepts that there are some types of behaviour that an employee doesn’t need to be told is wrong, such as fighting in the workplace, the behaviour for which the claimant was dismissed doesn’t fall into that category. The tribunal therefore found that the respondent didn’t have reasonable grounds for concluding that the claimant was guilty of theft and therefore of gross misconduct. The claimant’s unfair dismissal claim was upheld, along with their claim for notice pay. The tribunal found that the claim for direct race discrimination wasn’t well- founded and was dismissed. Careful contractual wording important for avoiding disputes In the case of Raymond Saul & Co LLP v Rashbrook, the Employment Appeal Tribunal (EAT) had to consider whether the ET was correct in upholding the employee’s claim that they’d been underpaid commission. The respondent was employed as a newly qualified solicitor. Under their contract of employment, they would receive 20% of profit costs invoiced by them if they were at least three times their annual £38,000 salary and “in respect of the work carried out by the employee whilst acting as a solicitor to the company.” When the respondent left the appellant’s employment, no commission had been paid or agreed. They claimed commission of over
£13,000. However, the employer argued that the fees they’d billed should be apportioned to the partners who’d supervised them during their work and the trainees that had worked alongside them – a necessity as the respondent was newly qualified. This was challenged by the respondent, who said that their contract made no mention of apportionment. They brought a claim for unlawful deduction from wages. After reviewing the contract, the ET decided that the appellant had to pay the respondent commission of 20% on the amount they’d invoiced. This was because, the ET said, there was no specific mention of apportionment within the contract. The ET held that, in arguing for the apportionment, the appellant was deviating from the wording of the contract. The employer was ordered to pay £7,866 of commission payment. The employer appealed this decision, arguing that the ET had misinterpreted or misconstrued the contract term relating to commission, and failed to recognise that commission was only due to the employee in respect of work carried out by the employee themselves and not their colleagues. The EAT found that the contract had to be given “a commercial and common- sense interpretation” and the ET hadn’t done that. Realistically, the EAT held, the employee couldn’t have generated sufficient profit to meet the threshold in their first year of practice when others were contributing to the employee’s work by supervising, supporting and working with them. Therefore, it didn’t make sense for the contract to require the appellant to pay commission to the respondent. The ET had incorrectly interpreted the contract, which was clear – the commission was only payable on amounts “in respect of the work carried out by the employee whilst acting as a solicitor to the company.” This needed to be given its “natural and ordinary meaning.” The EAT dismissed the claim, allowing the employer’s appeal and ruling that no commission was owed.
Dan Carder
Human Resources Content Consultant, Peninsula
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