We recently won an unfair dismissal case in Leicester, the facts of which, when said out loud, seem somewhat incredible. Tom Street of Do I Have A Case discusses the case, and the appropriate legal tests, in this video.
An employee with 22 years’ service with his employer was sacked for gross misconduct after he stole biscuits from a charity box available on the company premises. He was caught on CCTV, and he admitted wrongdoing. In the office it has inevitably become known as “The Biscuit Case”.
Whilst in line with the definitions of his employment contract and company guidelines he had indeed committed an act of gross misconduct, we were able to argue that the employer’s decision, i.e. to dismiss him, was not proportionate to the act of misconduct. After all, what is a couple of biscuits compared to 22 years’ service?
In deciding whether an employee has been unfairly dismissed an Employment Tribunal must determine whether the employer “acted reasonably in treating the potentially fair reason as a sufficient reason for dismissal” (section 98(4) Employment Rights Act 1996).
Case law has established over recent years that under section 98(4) a Tribunal must assess objectively whether dismissal fell within the “range of reasonable responses” available to the employer in the circumstances.
In the case of our client, the employer didn’t take him to one side and slap his wrists. Â They chose not to send him a formal written warning about his behaviour insisting he refrain from stealing biscuits. Â Instead they opted for immediate dismissal on grounds of gross misconduct. The Employment Tribunal decided that the employer in this case had not considered the full “range of reasonable responses” open to it, and perhaps could have chosen a more proportionate response.