Every little helps...
Mr Abdoul El Gorrou (‘the Claimant’) recently brought a claim of unfair dismissal against supermarket giant, Tesco’s.
The Claimant had worked for Tesco for 20 years as a customer service assistant. On 7 June 2019, an incident took place between the Claimant and a shoplifter.
By way of background, this particular store was at high risk of shoplifters who would sometimes be violent. The reporting system for security incidents was so complex (the staff had asked for a simpler version) that staff didn’t use it so the incident went unreported. There was also no security guard presence at the store.
In September 2019, an anonymous complaint was made to Tesco’s whistleblowing hotline. The complainant made allegations against the Claimant of theft and assault and included a video of the incident on 7 June 2019 which the caller had filmed from the CCTV showing in store at the time.
Tesco did not have a full version of the CCTV as it was automatically deleted after a period of time but the footage from the complainant showed the following:
the shoplifter sat on a chair in the store’s office;
the Claimant entering the office, grabbing the shoplifter’s hood and pushing it down;
the shoplifter swinging his right arm towards the Claimant (with something appearing to be in the shoplifter’s hand) and the Claimant catching the shoplifter’s arm;
a struggle ensuing which resulted in the Claimant restraining the shoplifter and later being helped with the restraint by his colleague;
the shoplifter propelling his chair back resulting in further restraint; and then
the police arriving and restraining the shoplifter whilst they continued to attempt to escape.
The Claimant was suspended and an investigation commenced. It transpired that the allegation of theft was false; however, Tesco proceeded to invite the Claimant to a disciplinary meeting to consider the allegation that he had acted unacceptably in initiating and sustaining physical conduct when detaining the shoplifter.
During the disciplinary, the Claimant put forward his defence: the Claimant claimed that he had noticed the shoplifter and invited him into the office in accordance with the Respondent’s shoplifting policy. Whilst the shoplifter was in the office, the Claimant said that he turned aggressive and spat at the Claimant. Furthermore, that the shoplifter had a key in his hand, which, at the time, the Claimant thought was a screwdriver. The Claimant, concerned for the safety of the staff and customers outside the office, proceeded to go into the office and restrain the shoplifter. The Claimant produced photos of the key which was held in the shoplifter’s hand in such a way that it could have been used as a weapon.
Tesco decided it was appropriate to summarily dismiss the Claimant for gross misconduct and, although the Claimant appealed, the appeal was unsuccessful.
The question for the Employment Judge was whether the Claimant had been unfairly dismissed. The legal test to be applied is (1) did the employer genuinely believe the employee was guilty of misconduct? (2) did the employer have reasonable grounds upon which to base that belief? and (3) at the stage such a belief was formed, did the employer carry out as much investigation as was reasonable?
The Judge found that Tesco had failed at the second hurdle. The Judge found that the belief was not arrived at on reasonable grounds for a number of reasons including: the Claimant’s unblemished 20 years’ service; the photographic evidence the Claimant had provided of the shoplifter’s “weapon key”; the evidence that the Claimant was spat at; the fact that the Claimant’s account was broadly supported by his colleague; that the complaint from the whistleblower was suspicious, including a malicious allegation of theft; that the CCTV evidence was decontextualized; and that the Claimant had not breached the Respondent’s policy. For reference, the Respondent’s policy did not cover a situation where a shoplifter had been escorted into the office, but then became threatening.
The Judge went on to find that, even if the Claimant had breached the Respondent’s policy and the Respondent had formed a genuine belief that the Claimant had breached the policy following reasonable investigation, the Claimant’s dismissal would still be unfair. Why? Because on top of this, a Judge must also consider whether, by the objective standards of a hypothetical reasonable employer, dismissing an employee fell within a band of reasonable responses open to the employer. The Judge considered that it did not: the Claimant was placed in a difficult situation in a dangerous store. The Judge also referred again to the Claimant’s unblemished long service, the delay in the whistleblowing complaint, the malice of the whistleblower and the lack of a complaint from the shoplifter.
The Claimant was awarded £42,000 in compensation.
An expensive day out in court for Tesco, but what can employers generally learn from this case? Firstly, it is a useful reminder of the factors taken into account by an Employment Tribunal when considering a claim of unfair dismissal. Secondly, although it wouldn’t have saved Tesco in this case, Tribunals always consider a company’s policies, so employers should make sure they are clear and deal with realistic eventualities. For example, in this store where dangerous shoplifters were increasing in number and there was a lack of reporting and security measures, it would have been prudent to issue guidance on what staff should do if a shoplifter becomes violent. In addition, employers should always try and look at misconduct objectively – the suspicious circumstances of how this case was reported to Tesco were not given enough weight nor was the lack of guidance given to the employee as to how to deal with a dangerous scenario – and finally, don’t underestimate the importance of a long, unblemished employment record when considering whether summary dismissal is the appropriate sanction as it can really tilt the balance in the employee’s favour.
If you have any questions, or if you need some help with putting in place policies or any other employment law issues, please don’t hesitate to contact Nash & Co Solicitors. You can call Rachel on 01752 827082 or email her at email@example.com