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‘Employee reaches expiry date! The Employment Tribunal’s approach to contributory fault.’

April 23, 2024

Greggs is known to be our safe and reliable guilty pleasure whenever we’ve forgotten to meal prep (or in my case ignoring the calorie deficit ‘health kick’ lunch in my bag) 

However, when reading the recent Employment Tribunal (ET) case of Ms R Lino v Euro Group Ltd I was horrified to discover that in my attempt to keep updated with case law, my beloved chicken bakes had been put to shame (thankfully nowhere near my local).  

However, (potentially) more importantly, this case demonstrates that where an employer dismisses an employee and fails in their obligation to diligently adhere to fair procedures, even when unfair dismissal is found, contributory fault can reduce the award leaving the employee without any financial compensation.   

The Clamant, Ms Lino, had been site manager at a Greggs branch outside London since 2019. 

In December 2020, a regional manager carrying out a breach food safety check found various meat containers and produce, visibly out of date with their use-by-dates blocked out by black pen. There were also handwritten signs indicating the food was still in date.  

It was quicky determined that Ms Lino was responsible for this. She claimed this was how she indicated to her employees that produce must be thrown out. This conduct was directly contrary to the company’s food hygiene polices.  

Ms Lino was taken through the company’s disciplinary process and was ultimately dismissed for her ‘conduct’.  

Ms Lino brought various claims against her employer; namely unfair dismissal, harassment and race-discrimination.  

When determining unfair dismissal, the ET had to, of course, consider the test under Part X of the Employment Rights Act 1996. For the dismissal to be held fair, the employer would also have to show that the reason for dismissal was misconduct and they acted reasonably in treating it as the ground for dismissal.  

When applying the facts to the law, the ET found that misconduct was clearly the reason for the dismissal. It was found the employer did have a genuine belief that Ms Lino was guilty of misconduct, namely a serious breach of food safety and they had reasonable grounds for that belief from their investigation. 

When considering whether dismissal for that reason was fair and fell within the range of reasonable responses open to Greggs, the ET found the employer did not act reasonably. 

The employer had ultimately dismissed the employee for reasons inconsistent with the investigation’s approach. Ms Lino was presented with allegations based on a serious breach of food safety, however, the dismissal letter detailed that she had done so for personal gain and to prevent her wastage figures from looking poor. The ET found the procedure followed and the decision made to be fundamentally inconsistent and therefore unfair as the reason relied upon by Greggs at tribunal differed from the reasons set out in the dismissal letter. The harassment and race-discrimination claims both failed. 

The significant point of this case is what happened when the ET considered remedies. Under the Employment Rights Act 1996, a basic award should be reduced if the conduct of the employee for dismissal meant it would be fair and equitable to do so. The compensatory award can be reduced if the employee has contributed to their dismissal. The ET had to be satisfied that the conduct was culpable or blameworthy, caused or contributed to the dismissal and it would be just and equitable to reduce the award.  

The ET found that by obscuring dates of food items, Miss Lino was acting in breach of procedures and created a risk for her employer and its customers. Adherence with basic standards of food hygiene is of the utmost importance in a food preparation environment. Consequently, the ET found Ms Lino to have been the sole cause of her dismissal and by way of contributory fault. The award for unfair dismissal was reduced by 100%.  

Notably, though it did not affect the award, the ET considered whether if the employer had followed a fair procedure, it would have made any difference to the decision to dismiss. Doing so could allow the tribunal another basis to reduce the compensation award. This is called a Polkey reduction. The ET confirmed that there was a strong probability that Ms Lino would have been dismissed if a fair procedure was followed. Therefore, they would have reduced any compensatory award for 75% if it hadn’t already been removed.  

This outcome of this case is extremely interesting and brings up various things for both employers and employees to consider.  

Firstly, even if your employee has committed serious misconduct, it is vitally important to ensure you follow a fair disciplinary procedure to avoid unfair dismissal. It is very rare that a compensation award would be reduced to nil. Employers must ensure that they; 

  • Make sure all communication with the employee is in writing.
  • Ensure you notify the employee exactly what disciplinary allegation(s) they need to answer and ensure this does not vary throughout the process.
  • Make the process clear to them from the outset and what the possible outcomes could be.
  • Provide clear reasons for every decision.
  • Ensure you follow the procedure in the same way with all employees.

Secondly, both employees and employers should be aware than an employee’s conduct throughout their employment and the disciplinary procedures may have a significant effect on their compensatory award. Although, as a food hygiene case, this decision may be the exception rather than the rule, employees should ensure that they do not do anything to increase their blame regarding their dismissal. Regardless of the unfair dismissal, Ms Lino has walked away with no award even though she could prove she had been unfairly dismissed.  

Lastly, be grateful Greggs removed Ms Lino from her role so as to ensure its customers welfare was looked after!  

If you have any questions on this on any other area of Employment law, please get in touch with Blackadders Employment Team, working in Aberdeen, Dundee, Edinburgh, Glasgow and across Scotland.

The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.

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