In the case of Moraru v Boohoo.com UK Ltd, the Employment Tribunal had to consider whether an employee was unfairly dismissed after taking and eating chewing gum intended as a free gift for client orders.
Facts
The claimant was employed by the respondent as a warehouse operative. The respondent had a disciplinary policy which included a list of “offences” which it stated would be treated as gross misconduct. The list included “theft or fraud”.
Although the respondent had a rule that food is not to be consumed in the warehouse, many employees helped themselves to chewing gum and consumed it whilst at work. This included team leaders and members of management.
The claimant believed that it was available for general consumption by staff so they would take it and put it under the stairs. Someone found the chewing gum and the claimant was brought to a meeting and accused of theft. The claimant argued that their conduct was not theft because they did not take the chewing gum off the premises. However, they were dismissed for gross misconduct for theft.
The claimant brought claims for unfair dismissal, direct race discrimination and breach of contract.
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Employment Tribunal (ET)
The tribunal had to consider whether the respondent acted reasonably or unreasonably in all the circumstances, considering the respondent’s size and administrative resources, in deciding to dismiss the claimant for gross misconduct.
The tribunal found that on balance, at the time it took the decision to dismiss the claimant, the respondent had a genuine belief that the claimant was guilty of misconduct. However, whilst the respondent had reasonable grounds for believing that the claimant had taken and stored the chewing gum under the stairs, it did not in the tribunal’s view have reasonable grounds for concluding that this amounted to gross misconduct or theft.
The claimant did not seek to hide or cover up what they had done and was honest and open throughout the disciplinary process. Their behaviour was consistent with a genuine belief that eating the chewing gum was acceptable and common practice.
The claimant stated very clearly from the outset that they didn’t believe that what they were doing was wrong. They also said, in support of their assertion that there was no restriction on taking and eating the chewing gum and that many people were doing it, including team leaders and managers.
The tribunal said that an employee cannot, in the tribunal’s view, be criticised for doing something which they believe is acceptable behaviour because it is common practice, including among those in authority.
The tribunal went on to say that whilst it accepts that there are some types of behaviour that an employee does not need to be told is wrong, such as, eg fighting in the workplace, the behaviour for which the claimant was dismissed does not fall into that category. The tribunal therefore found that the respondent did not have reasonable grounds for concluding that the claimant was guilty of theft and therefore of gross misconduct. The claimant’s unfair dismissal claim was upheld, along with their claim for notice pay. The claim for direct race discrimination was however dismissed.
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