Case Study: Caught in the act but a victim of entrapment

Tom Street & Co were recently instructed to assist a young man in connection with an unfair dismissal claim he wished to advance against his former employers.

His employers were a high street retailer.

He was dismissed for gross misconduct in connection with the alleged theft of extremely low-value items in this case, confectionary items.

The claim was brought under Section 98(4) of the Employment Rights Act 1996 and, whilst we asserted some criticism of the procedure that was followed, the main thrust of our client’s argument was that the decision to dismiss him was outside the range of reasonable responses.

What also made this case interesting was the fact that, in order to catch him “red-handed” the security department of the employer had made a specific decision to train internal CCTV footage on an area of the workplace that contained the confectionary items.

Furthermore, an open packet of confectionary was placed by the employer on a table effectively inducing passers-by to help themselves.

When our client, as recommended by a fellow colleague, took a couple of the confectionary items, he was immediately suspended and thereafter dismissed for gross misconduct for having “stolen” some of the items.

The facts of the case were not significantly disputed and our client admitted, at the outset, that he had eaten some of the confectionary but only did so because firstly he was invited to do so by a fellow colleague and secondly, he didn’t realise that he was doing anything wrong.  Notwithstanding his explanation, his employer made the decision to dismiss him regarding “theft” as “theft”.

The Employment Tribunal carefully considered the factual background to the case over two days and concluded that the decision to dismiss our client in all the circumstances, especially taking into account the fact that he was, to a certain extent, set up and also the extremely low-value of the items allegedly stolen, concluded that his dismissal was unfair.

This case was a very interesting application of the Tribunal’s power to conclude that a decision to dismiss fell outside the range of reasonable responses as set out within Burchell Test.

Whilst the Tribunal do not have power to substitute their own view as to what the decision the employer should have made, they certainly do have the freedom to conclude that a decision to dismiss was so unreasonable as to fall outside the broad range of responses that any reasonable employer could have in mind to punish the employee for the offence committed.