The Claimant in this case worked as a warehouse operative from 2020. In 2023 the Respondent received cases of chewing gum to be inserted into the packages customers had ordered. It was not permitted for employees to eat food in the warehouse. In December 2023 the Claimant had a meeting with his team leader. He was informed that an investigation was being commenced in relation to allegations of theft.
During the disciplinary hearing the Claimant was shown the CCTV of him taking gum into an area of the warehouse and placing the package under the stairs. The Claimant did not deny that he was the person in the footage but claimed that taking the gum was commonplace including amongst managers and team leaders. He did not realise that he was not allowed to have it. Nonetheless he apologised but felt that accusing him of being a thief was harsh. He was dismissed.
The Claimant appealed his termination alleging discriminatory and inconsistent treatment. The decision was upheld.
The Claimant brought a claim of unfair dismissal to the Employment Tribunal. The Respondent argued that he ought to have known that this was not allowed as there was a training session on the subject of not eating the particular chewing gum. This session took place after the Claimant’s dismissal.
The Claimant’s case was successful at tribunal. It was held that the Claimant had been open and truthful during the process and did not deny his actions. The tribunal stated “An employee cannot in our view be criticised for doing something which he believes is acceptable behaviour because it is common practice, including among those in authority.”
The lesson for employers is that it needs to be clear what behaviour is prohibited. Employers cannot assume employees know what constitutes misconduct, particularly when the same behaviour appears tolerated in practice. It is also important to stress that consistency matters, it is risky to discipline some employees over behaviour that many employees engage in.
If you have any questions on any of the issues raised in the above article, please contact Alan Sutherland.