The Employment Tribunal (ET), in the case of Ms R Lino v EG Group Limited, were tasked with deciding whether or not the claimant, who crossed out the use-by-dates on food was unfairly dismissed.
Facts
When a food safety check was carried out at the store where the claimant was the manager, several issues were identified. Containers were found with no labels showing when they had first been used, nor the use-by-date; some containers had the use-by-date entirely blocked out by a marker pen; and a sign was found which said “All ingredients are ready here!! Don’t take from the fridge” with an arrow pointing down.
Following an investigation, the claimant was invited to a disciplinary hearing. The allegation put to the claimant was “Serious breach of food safety; specifically, failing to remove out of date food items from sale”. However, this hearing did not take place. When the claimant was invited to a rescheduled disciplinary, a different allegation was put to the claimant which was “Serious breach of food safety – specifically, failing to remove out of date food items from sale and amending dates fraudulently.” At the hearing, when asked any questions, the claimant answered, “no comment”.
The claimant was dismissed for gross misconduct. The outcome letter referred to the original allegation “Serious breach of food safety – Specifically, failing to remove out of date food items from sale”. The respondent concluded that the expiry dates were crossed out by the claimant for personal gain because it would reduce ‘wastage’ so that the store’s figures, and the claimant as the manager, looked better.
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Employment Tribunal
The claimant accepted that they had written the sign and drawn the black mark on the items but argued that it was their way of showing other employees that the items should be thrown away. The ET, however, could not understand why the claimant would take the time to mark the products rather than just get rid of them, nor why it involved covering up the ‘use by’ date. The ET found, therefore, that the respondent had a genuine belief that the claimant was guilty of a serious breach of food safety, by failing to remove out of date items from the store.
The ET, however, held that the conclusion the respondent reached was not based on the allegation that was investigated. The allegation investigated was that the claimant had failed to remove out of date food items from sale which was a serious breach of food safety. However, the finding, which was more serious than the allegation put to the claimant, was that they had crossed out the dates to reduce wastage on site for personal gain because it would improve the wastage figures of the store.
The ET, therefore, held that the claimant had been unfairly dismissed.
Contributory fault
The ET went on to consider whether or not the claimant contributed to the dismissal because of their actions. By marking the items and obscuring the dates the claimant created a safety risk because the products could have been used after the use-by-dates had expired.
The claimant’s conduct was, therefore, found to have caused and contributed to the dismissal and so the ET decided that the basic and compensatory award should be reduced by one hundred percent. Whilst the claimant was unfairly dismissed because the procedure followed was flawed, they did not receive any compensation because of their conduct.
This case shows how important it is to get the procedure right when dealing with a misconduct issue. Peninsula’s Face2Face team can help you with this as they can meet with your employees, so you don’t have to. Speak to your HR Expert for more information.
