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.
Facts
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 did not pay for the multiple reusable ‘bags for life’ even though they are a chargeable item.
An investigation meeting took place at which the claimant was shown the CCTV footage. The claimant was then invited to a disciplinary hearing and pre-warned that the outcome could be dismissal. The CCTV footage was reviewed again with the claimant in this hearing. The claimant denied that they intended to steal the bags. In mitigation they 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 they 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 because they needed something to put the bulky items in. They could also be seen selecting the ‘no bag’ option at the self-checkout and carefully reviewing the receipt as they were walking out. The respondent concluded that they could no longer trust the claimant, even though the bags did not cost as must as the shopping, so dismissed them 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 was not a mistake.
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.
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Employment Tribunal
The ET found that a reasonable and proportionate investigation had been carried out and the claimant was given every opportunity to respond to the allegations. The respondent was entitled, the ET held, to find that the claimant had committed an act of misconduct, even though the ‘bags for life’ had a low monetary value.
A fair procedure was carried out by the respondent and an adequate investigation, disciplinary hearing and appeal were also carried out. The CCTV and the receipt clearly showed that the claimant took the ‘bags for life’ without paying for them.
Accordingly, the ET held that the dismissal was procedurally and substantively fair, so the claimant lost their claim.
Takeaway points
This case shows that theft, whatever the monetary value, is theft. So, whether it is a ‘bag for life’ that costs pennies, or thousands of pounds that is taken, it is still an act of misconduct.
But what is important to remember is that even if there is a fair reason to dismiss, a tribunal will still look at whether a fair procedure has been followed throughout, so it is vital that employers get this right.
