Under the Employment Rights Act 1996, to bring a claim for unfair dismissal, an employee must have two years’ service. Labour plans to change this if they get into power and to give the right from day one.
The burden of proof is on the employer to show that they had a fair reason to dismiss an employee, that they followed a fair dismissal procedure and that the sanction of dismissal was within the range of reasonable responses for the employer to take. A fair reason to terminate an employee’s employment includes conduct, capability, redundancy, for a legal reason or some other substantial reason – a term used for a wide variety of other situations such as the end of a fixed-term contract or a breakdown of trust and confidence between the employer and employee.
The press reported lately on a case that I believe serves as a salutary reminder that even when the decision to dismiss an employee for gross misconduct seems overly harsh, it can be held to be fair no matter what the mitigating circumstances are. In Doffou v Sainsbury’s Supermarket Limited [2024], the East London Employment Tribunal held that it was fair for Sainsbury’s to dismiss an employee for gross misconduct when he took a couple of plastic bags for life without paying for them.
Mr Doffou had worked for Sainsbury’s at their Romford branch for almost 20 years. At the end of a night shift, he was packing up his £30 shopping. He took a couple of bags for life but pressed the ‘zero bags used’ option on the self-checkout till and therefore did not pay for them. The bags cost between 30p and 60p each.
When giving evidence, Mr Doffou accepted that Sainsbury’s had a zero-tolerance approach to theft. But he insisted that he was tired and unaware of what he was doing when he took the bags without paying. However, he also admitted in evidence to having taken several trips to get the bags and that he had checked his receipt at the end of his shopping. There was also CCTV footage of him taking the bags.
The tribunal judge held that Sainsbury’s had carried out a reasonable and proportionate investigation into the alleged conduct and that Mr Doffou was given a full opportunity to respond. The dismissing officer was entitled to form a reasonable belief that Mr Doffou had not given a credible explanation and they were entitled to conclude that Mr Doffou had committed gross misconduct notwithstanding the low value of the bags taken. Once the decision maker had concluded that Mr Doffou had acted dishonestly and committed theft, the judge said that it was hard to argue the decision to dismiss fell outside of the range of reasonable responses.
It did not matter that Mr Doffou had worked for almost 20 years for the company nor that the theft was of a low monetary value. Sainsbury’s did not have to show beyond doubt that Mr Doffou was guilty, simply that they had a reasonable belief that he had breached their zero-tolerance theft policy.
The judge did not give full written reasons, but the case was widely reported I believe because it seems on the face of it a very sad case where an employee who had worked without incident before, made one bad decision that lost him his job. The fairness of the decision to terminate did not have to consider any of the mitigating circumstances, but could solely rest on one moment of poor judgment by the employee.
This blog was written by Anita Vadgama, Partner at didlaw
