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When a bag for life causes all manner of strife: Doffou v Sainsbury’s Supermarket Limited  

April 19, 2024

So, imagine as an HR professional, you’re faced with the following scenario.

An employee with more than 20 years’ service, after working his night shift, leaves his work place in the early morning, having bought some food, pillows and bedding from his employer.

He works as a Night Shift Assistant for the second largest supermarket in the UK and uses a few of the multiple reuseable bags for life to transport his purchases home (Bags for life cost either 30p or 65p).

However, the employee, on using the self-service check out, selects the “zero bags used” option.

He is caught on CCTV.

The employer spots that he should have paid for these bags for life and invites him to a disciplinary hearing, stating that the allegation is one of theft which carries with it the sanction of dismissal without notice.

At the disciplinary hearing, the employee points to the fact that he was tired and that it had been a particularly busy night for him. He further states that he was unaware what he was doing. The employee is a native French speaker but was able to converse in English.

The disciplining manager notes that the employee used more than one trip to get the bags and furthermore the CCTV records him checking his receipt at the end of his shopping. After hearing the employee’s mitigation, she finds that the employee had been dishonest, had deliberately not paid for the bags, perhaps had formed the view that these bags were low value items, determines that she no longer had trust in him and dismisses him for gross misconduct.

What do you think?

Was that a fair decision for the employer to have reached?

These were facts of the recent case of Doffou v Sainsbury’s Supermarket Limited which was determined within the East London Tribunal Service. In light of these facts, the Employment Judge found that Sainsbury’s had carried out a proportionate investigation, had reasonable grounds for the belief that the employee was guilty of misconduct and, ultimately, determined that this dismissal was fair.

If you have a sharp intake of breath at this last paragraph (or feel the need to grab your pearl necklace), remember that whilst one employer might decide that a final written warning is sufficient, this does not mean that another employer is wrong to dismiss an employee for the same issue.

Seasoned HR practitioners will recognise that there is a reasonable band of responses for every situation. We are all different. It is unrealistic to expect one set of circumstances to result in the same response from every manager.

Importantly, however, when an Employment Judge is determining the reasonableness of an employer’s actions, the tribunal should not substitute its own decision for that of the employer. Instead, the tribunal’s job is to determine whether the decision to dismiss falls within this reasonable band of responses.

So, if you encounter a case involving a mi-STEAK-en act of employee dishonesty, DOUGHNUT focus on OLIVE the value of the items or dismiss just for the HALLIBUT. Instead try and MUSTARD up the courage to ask yourself, is the PORK-ticular value of the items relevant or is the real TISSUE that the employee sacra-FRIES-ed the trust with its employer. Just don’t go BACON the law – otherwise it might cost you a pretty PENNE. Get in touch if we can help – we hope to make the process easy PEAS-Y – and to stop you from letting out a little WINE (whine).

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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