A woman is suing her former place of employment, a law firm, after claiming she was let go for eating a leftover sandwich she found in the office (as reported by legal affairs website Roll on Friday. Traditionally, many have taken the view that ‘theft is theft’, regardless of the value or context – whether it is stealing a drink worth £1.50 or stealing client money from an account.
In this article, we will look at allegations of gross misconduct in the workplace and answer some of your frequently asked questions.
Remember, this article is a guide and not a substitute for taking advice; please contact Avensure for specific advice for your business.
Case in Point:
Woman sacked ‘for eating leftover tuna sandwich’ at Law firm…
According to the legal affairs website Roll on Friday, Gabriela Rodriguez worked as a cleaner at the offices of Devonshires Solicitors for two years via contractor Total Clean. She claims she was sacked last year after Devonshires complained that leftover sandwiches were not being returned. She admits eating a £1.50 leftover tuna sandwich, which she thought would be thrown away. She was fired for “theft” in taking client property “without authority or reasonable excuse,”.
She has brought claims for unfair dismissal and direct race discrimination against Total Clean and direct and/or indirect race discrimination against Devonshires Solicitors. Devonshires denies that they made any complaints about Ms Rodriguez, and Total Clean maintains that it followed a proper process before dismissing her.
It is difficult to comment on the rights or wrongs of the case without having more detail about what happened. However, it would seem the rules surrounding acceptable workplace behaviour that applied to Ms Rodriguez may not have been clear enough. Many employees would not consider eating a sandwich they believe will otherwise be thrown away as a member of staff stealing from work. If it counts as employee dishonesty in your organisation, you should make that clear.
It remains to be seen whether Ms Rodriguez will succeed with her claims or if the matter will even reach a full hearing in the tribunal. We will be following the case with interest, especially to see how it shapes future attitudes towards traditionally held views on matters such as staff conduct and theft in the workplace and employer-employee dynamics, especially in cases involving indirect discrimination and the rights of migrant workers.
While the case’s outcome remains uncertain, it underscores the importance of clear communication regarding workplace policies and acceptable workplace behaviour to avoid disputes.
Gross Misconduct & Theft in the Workplace
Most queries we receive at Avensure from businesses are related to staff conduct. Fortunately, most cases concern low levels of misconduct that seldom result in someone losing their job. However, sometimes, the actions of an employee are so severe that dismissal seems like the only option.
Theft in the workplace usually amounts to an act of gross misconduct… Before making any accusations about employee dishonesty and staff stealing from work, you must conduct a fair investigation into the alleged theft.
What is Gross Misconduct?
Gross misconduct is a form of conduct which shatters the trust and confidence placed in an employee, which results in an employer being legally able to terminate their employment without notice or any payment in lieu of notice. This is also known as ‘summary dismissal’.
It falls under one of the 5 fair reasons for dismissal:
- Conduct
- Capability
- Redundancy
- Statutory ban/restriction
- Some Other Substantial Reason (SOSR)
What are common examples of gross misconduct?
Most employee handbooks will give a list of examples of gross misconduct, such as::
- Theft/fraud
- Threatening/violent conduct
- Harassment
- Severe breaches of health and safety
- Incapacity to work due to alcohol or drugs
However, these lists are not exhaustive and may also depend on the type of industry.
The great ‘instant’ dismissal myth…
Does this mean I can sack someone on the spot if I suspect they have committed an act of gross misconduct?
No. Don’t confuse summary dismissal with ‘instant dismissal’ because that is not what a summary dismissal is.
There is still a requirement for the employer to follow a fair procedure and adhere to the law in cases of gross misconduct despite the severity of the allegations.
REMEMBER- an employee with over 2 consecutive years of service can claim unfair dismissal.
What should I do if I suspect someone has committed an act of gross misconduct in the workplace?
Take advice, call our experts. Do not delay in doing this, as most cases of gross misconduct require the employer to take swift action in those very early stages.
Do I have to suspend the employee?
Most allegations of gross misconduct require suspension from work.
Suspension of an employee must be handled carefully so as not to give the impression that you are dismissing them there and then or have already made your mind up as to their guilt.
Suspension is a holding measure and allows a fair investigation to take place. Often, a failure to suspend an employee can impact the fairness of the employer’s decision to dismiss.
For example, an employee is suspected of stealing money from the till, and they continue to work on the till for a further two weeks before they are suspended from work. The reason for the delay in suspension is that the employer is short-staffed.
It would become difficult for the employer to argue that the act of theft in the workplace was so severe the only option available was summary dismissal for gross misconduct if they allowed the employee to continue to handle cash whilst under suspicion.
Can gross misconduct be a one-off event, or can it be a series of events?
Both. If we use the example of theft again, you do not have to catch the employee in the act numerous times to justify a dismissal for gross misconduct. You may find, following investigation, that they have been stealing from you for a while, but a one-off theft incident is usually enough to shatter the trust and confidence placed in the employee.
However, consistency is key. Allegations do not become gross misconduct the more often they are repeated.
For example, if we use the allegation of theft again. Suppose the same employee steals from you and is dismissed for gross misconduct but has stolen from you previously, or another employee has stolen from you, and their case was not treated as gross misconduct. In that case, this will impact the fairness of your decision.
How long do you have to suspend an employee?
The suspension of an employee should last as long as it takes to investigate the allegations, such as interviewing any potential witnesses, viewing CCTV and so on. It shouldn’t be in place too long because suspension is paid, costing your business. For more information on suspension. Please get in touch with our legal team.
Disciplinary Hearings…
What happens after the investigation and suspension of an employee?
The case will likely progress to a formal disciplinary hearing. The evidence must be presented to the employee and is usually sent to them with a letter inviting them to attend a formal disciplinary hearing.
The purpose of the hearing is:
- The employee is to formally respond to the allegations and the witness/material evidence
- To put forward a full explanation and present any mitigation for their alleged actions
REMEMBER- The person who investigates the allegations should not then chair the formal disciplinary hearing. However, there may be exceptions for small businesses.
The do’s & don’ts of a disciplinary hearing
Do…
- DO ensure that the venue is suitable without distractions
- DO ensure that the purpose of the meeting is fully explained
- DO ensure that you stick to the allegations as set out in the disciplinary hearing invitation
- DO ensure that you keep the employee on track
- DO ensure that before moving on to the next allegation or before concluding the hearing, the employee has said all they wish to say
Do Not…
- DO NOT ask leading questions or put words into the employee’s mouth
- DO NOT discount or ‘shut down’ any mitigation that is raised
- DO NOT give the decision in the hearing itself
- DO NOT have the same person chair the disciplinary hearing and the investigation
- DO NOT badger or harangue the employee
The importance of note-taking
It’s vital that full minutes are taken in any meetings during a disciplinary process. Minutes needn’t be verbatim, but they should include all questions asked and all responses from the employee and their representative.
It’s vital that full minutes are taken in any meetings during a disciplinary process. Minutes needn’t be verbatim, but they should include all questions asked and all responses from the employee and their representative.
Sickness Absence…
What happens when an employee goes off sick before the conclusion of a disciplinary process or during an investigation?
- Absence due to stress at work is common, particularly when someone is facing allegations of employee dishonesty and gross misconduct
- Sickness supersedes suspension- the suspension should be lifted
- It may be appropriate to place the disciplinary on hold
- Medical evidence/guidance may be sought to assess if it is appropriate to proceed
Grievances…
It is common for grievances to be raised by an employee facing allegations of gross misconduct.
- Don’t assume it is simply a ‘delay tactic.’
- Depending on the nature of the grievance, i.e., if it is unconnected to the disciplinary, it may be appropriate to place the disciplinary on hold while the grievance is investigated.
Or
- If the grievance is directly linked to the disciplinary allegations, it may be appropriate to deal with the concerns raised as part of the disciplinary process.
Disciplinary Outcomes & Right of Appeal…
Does the right to appeal apply in cases of gross misconduct?
Yes, and unless you are a very small business, the employer should allocate someone to hear the appeal who was not involved in the original investigation or the decision to dismiss. The time an employee must raise an appeal is usually around 7-14 days. This will be set out in the contract or the employee handbook.
The decision:
Following the formal disciplinary hearing, the person conducting the disciplinary hearing must make their decision. There are several factors to weigh up to ensure that the decision is fair and reasonable:
- Are you able to make a decision? If not, you may need to carry out further investigations, which will mean the hearing will need to be reconvened once those follow-up investigations are completed.
- If you are in doubt at all as to the employee’s explanations, then the hearing may not have been thorough enough and may need to be reconvened.
Assuming you don’t have to reconvene, the outcome of the hearing will usually be one of the following:
- The allegations of gross misconduct have been proven, and the employee is subject to a summary dismissal
- The allegations are proven, but taking account of the explanations presented, dismissal is not within the ‘band of reasonable responses.’
- The allegations fall short of being sufficiently serious enough to warrant summary dismissal but still require a formal sanction, e.g., a written warning or first and final written warning
- There is no case to answer, and no formal sanction is given
What should be considered when considering the outcome of gross misconduct disciplinary hearings?
- the employee’s explanation of the conduct and the evidence
- any mitigating circumstances put forward by the employee, e.g., personal circumstances, health, culpability & awareness
- their length of service
- previous disciplinary record/the employee’s usual conduct/behaviour
- consistency, i.e., how have any similar incidents with other employees been dealt with?
Communicating the decision
The decision must be issued in writing, and that written decision must contain the following:
- The reasons why the allegations of unacceptable staff conduct have been upheld
- How mitigation has been considered
- The effective date of termination
- The right to appeal, the timescale for appeal and to whom the person should appeal
The right of appeal
The right to appeal the outcome of a disciplinary hearing is vital. Appeals can be raised on several grounds, but mainly for the following:
- The decision is inappropriate or too severe
- The person making the decision has been unduly harsh or biased in some way
- A fair account of mitigation and evidence was not given
- Or
- New evidence has come to light
Need Support With Disciplinary Proceedings And Employee Theft?
What may seem like clear, gross misconduct allegations to you of employee theft could result in a claim for unfair dismissal should the correct internal disciplinary actions procedures not be followed.
Dealing with theft in the workplace and starting disciplinary proceedings largely depends on what you have written within your documentation, how you have dealt with disciplinary matters in the past, and the precedent you have set.
Most companies will have detailed disciplinary procedures in place, but what is essential is ensuring that you deal with disciplinary matters fairly and consistently when it comes to theft in the workplace.
If you are dealing with an issue and need support, please get in touch at the earliest opportunity. Click here: Avensure Contact!
As always, this article is a guide and not a substitute for taking advice; please contact Avensure for specific advice for your business.
