What matters most in a gross misconduct dismissal claim generating the above headline? The relatively low value of the misdemeanour, or the inherent dishonesty?
Julian Oxborough was a checkout operative at Lidl with 10 years’ service. A customer attempted to purchase a bottle of water that had become detached from a multipack and lacked a barcode. Mr Oxborough left the anomalous bottle at the side of his till, and drank from it later without seeking permission or telling anyone he had done so. This contravened a strict Lidl policy that required prior purchase, forbade consumption without prior purchase, and notified the risk of summary dismissal. Write off decisions were entirely reserved to store managers.
Mr Oxborough was notified of his wrongdoing, suspended with a full explanation, and invited to a disciplinary hearing. His claims to have been dehydrated, to have assumed that write off would apply, and to have forgotten to report his action did not help him. Lidl considered there to be no suitable alternative to dismissal, invoking its well publicised zero tolerance policy.
The tribunal found that Lidl honestly believed in Mr Oxborough’s misconduct and had reasonable grounds for the belief, notably by reference to Mr Oxborough having undergone relevant training only three months previously. The investigation was sufficient – particularly as the facts were not in dispute, only the explanation – and the procedure was fair. In assessing whether the decision fell within the range of reasonable responses, the tribunal took note of the nature of Lidl’s business, its zero tolerance approach to theft, and how this was made clear to all of its staff.
Would there have been any difference, we may ask, if this dispute had involved low value items of office stationery (anyone recall the episode of The Office when Dawn was purportedly sacked for “stealing Post It notes”?), or items destined for or actually on a scrap heap? That is where the range of reasonable responses comes into its own. Lidl’s retail business was founded upon staff honesty at all times and in every respect, reinforced by clear policy. No scope to invoke trivia. And no need to go so far as to invoke the French proverb "qui vole un œuf, vole un bœuf" - "he who steals an egg will steal an ox".
Are you in two minds about a misconduct dismissal? Or do you have a policy in need of review? We can help. Contact David Cooper on 07450 350715 or via david@wolverhamptonemploymentlaw.co.uk .
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