Hello, hello, hello, it’s Emma from Precept…and what a busy few weeks I have had!!! Phew….you will have seen our successful horsey/dancing trip to Aintree a few weeks ago where we truly brought the Precept bonkersness to the horse-world. Since then, we have…ready for it….been to watch the heats of Gladiators live (wow, there are no words, this is all!), to a 1940s weekend in Lincolnshire as part of Rob’s big five O birthday celebrations, camped in a different part of Lincolnshire whilst I competed in the British Dressage Area Festivals and came 4th in the area – woohooo and then last but not least attended the Gladiators semi-final at the Sheffield Arena.
The latter involved a 5am set off from home but by gumdrops it was worth it!!! We are sworn to secrecy for the most part but all you really need to know is that if you ever get the chance to go and watch it live – do not hesitate and DO IT!! I am quite hoarse now (not in the usual way!) after all that shouting and was truly star struck when making eye contact with the actual real life gladiators who were just a few metres away due to our literally 5th row seats … which made the 5am start well worthwhile! For me, it took me back to being a little girl and watching the original gladiators on the TV with my parents on a Saturday night, and the chance to re-live that with my little ones is really sentimental. The chance to watch it live was just out of this world.
Just as an FYI my new faves are Giant and Fury – who knew??!! Anyway, that is quite enough of that …. Back to the employment law update you actually came here for …
An article in the Guardian recently caught our eye. It was about employees who had been dismissed for “minor misdemeanours” saying they would be fighting back.
The focus of the article was Gabriela Rodriguez. Her story may be familiar both because it caused quite the stir in the press back in February 2024 and also because, as the article points out, the general circumstances are ones that crop up all too regularly.
Ms Rodriguez was dismissed without notice or pay in lieu of notice by her employer following a disciplinary procedure where it was found that she had eaten a £1.50 tuna and cucumber sandwich that had been left out on a discarded platter for staff at the law firm in London where she was a cleaner. Her employer, Total Clean, classed this as “taking part in activities which cause the company to lose faith in your [Ms Rodrigeuz’] integrity, namely theft/misappropriation of client property.”
Now, Ms Rodrigeuz has brought claims against Total Clean in the Employment Tribunal for unfair dismissal and discrimination which remain outstanding, so we cannot add much in the way of comment about her particular case.
But it does lend itself to a more general question: would (could) you fire somebody because they ate a leftover sandwich if they hadn’t been told they could eat it?
The decision as to whether you would dismiss somebody because they had eaten a left-over sandwich is really up to individual employers. Some might take the approach that “it was going to waste so what’s the issue?” Others might want to deter staff from eating leftovers either to avoid these sorts of issues arising or, on a more practical level, because there’s no telling how long those leftovers have… well… been left over. We don’t know about you, but we don’t want to be dealing the after effects of eating a 2 day old tuna and cucumber sandwich (yuck!)
Whether you could dismiss somebody (or, rather, could dismiss them fairly) because they had eaten a left-over sandwich is a bit of a different question. Remember that, currently, anybody with two years’ service has the right to bring a claim for ordinary unfair dismissal. So, if you did want to dismiss somebody for taking a sandwich you would need to have a fair reason for dismissing them and you would only be able to dismiss them following a fair process and where the dismissal fell within the range of reasonable responses open to the employer. In a lot of cases involving low value items (like sandwiches) and where there’s some sort of explanation kicking around, dismissal for this sort of action is going to be risky as it’s likely to fall outside the range of reasonable responses.
But if you want to dismiss, what do you actually need to do? For a start, you need to ensure you have undertaken a reasonable investigation before any decisions are made. Get statements from relevant witnesses and review CCTV (where it is available, and your policies make clear it can be used as part of a disciplinary process). Then, if you feel there is a case to answer, set up a disciplinary hearing where the employee facing the allegations knows the case they are facing and is able to respond in full. Listen to any mitigating circumstances they may present: “I didn’t know the food was still going to be used. I thought it was leftover. Everybody takes food that is leftover. I am sorry. I will pay for the sandwich etc.” and then make your decision.
The process to follow when making the decision should look like this: have I established a reasonable and genuine belief that the alleged act took place? If so, does the alleged act constitute misconduct or gross misconduct (referring to any disciplinary policies – we would strongly suggest that if these sorts of incidents are likely to occur in your workplace that you specifically account for this in any conduct or disciplinary rules, because the less ambiguity the better), if gross misconduct, are there any mitigating circumstances that warrant a lesser sanction? Are there any other relevant circumstances including live warnings on file and how have others in similar situations been dealt with?
But it’s not just sandwich stealing that seems to be an issue. Oh no, the Guardian article lists other examples where staff (predominantly in the cleaning industry) have been dismissed for what is perceived to be “misdemeanours”.
Time-theft is mentioned, for example, where workers are sacked for “clocking out a few minutes ahead of their allotted shift end”. We get what the article is saying here – that seems fairly innocuous. But what if it’s repeated daily? What if it’s repeated by 100s of workers in one organisation? It starts to add up and can become a big issue. Beyond that, what if the employer has given a clear indication that the worker should not be clocking in late or out early? If that is repeated and ignored, that speaks to a bigger issue around failing to follow reasonable management requests.
We guess what we’re trying to say throughout this article is (and here comes the typical lawyer response) cases are nuanced and each and every one needs to be looked at and dealt with on an individual basis.
We would always strongly advise against jumping to conclusions and making knee jerk decisions. Take a breath, step back and look at the case properly to ensure you’re going through a full and proper process. By all means, take action where that is needed but make sure you pay proper attention to all of the relevant circumstances (including the mitigating circumstances) and make sure that your final decision is reasonable. If you think there’s a lesser sanction to dismissal that can address the situation and avoid it happening again in the future, go with that.
As we always say, a little bit of time spent up front can save you a massive amount of time in the long run.
The full Guardian article is here: ‘We need to assert our power – or we’ll get trampled on’: the cleaner sacked for eating a tuna sandwich | Life and style | The Guardian
If you want advice on any of the issues mentioned, then Precept are more than happy to assist you with this, deploying our jargon-free expertise to guide you through what you need to do.
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