This case was an appeal to the Employment Appeals Tribunal of a Rights Commissioner decision who had decided the two men involved, Boyne and Moran, were fairly dismissed.
The background to the case is the 2 men worked for Keelings Logistics Solutions who operated as a distribution company for the supply of goods to one customer. The 2 employees worked in the warehouse.
The security manager saw the 2 men “acting suspiciously” beside an open cage and saw the cage being moved. He also said he saw the men eating something and putting their hands inside the cage and stated the men had no business standing together in front of a cage.
The employer had a policy that no food would be consumed on the warehouse floor and installed vending machines on the shop floor to prevent staff tampering and/or eating stock.
The Warehouse Manager was alerted and it became clear that a box containing jam tarts had been tampered with and two individual tarts were missing from a packet.
An investigation was carried out and after a CCTV footage reviewed many times. The men said they were sharing a Mars bar and denied eating the jam tarts.
The employer carried out a disciplinary procedure and dismissed the men who appealed the decision but lost.
The EAT found that the men’s evidence was not credible and on the balance of probability that they did tamper with the stock.
The Tribunal also found that there were no procedural defects which would render the dismissal unfair. The investigation, disciplinary meetings and appeal were thorough, fair and objective.
The Tribunal decision also stated:
The Tribunal must assess where or not the sanction imposed was proportionate. The respondent stated that its function is to accept deliveries, process them and dispatch it to a third party stores. The third party is their only client and they are totally reliant on them for their business. There is a high level of trust between the respondent and the third party and that must be maintained at all times. If they tolerated staff tampering with stock the working relationship between them and the third party could be irretrievably damaged. That is why there is a zero tolerance policy. The respondent has placed vending machines on the shop floor to prevent staff tampering and/or eating stock. The Tribunal accepts that the respondent’s zero tolerance policy is reasonable in the circumstances. Any dismissal arising out of a breach of the policy is fair and proportionate.
What I find interesting about this case is that the EAT found that the employers zero tolerance policy in relation to staff tampering with stock was “reasonable in the circumstances”.
Many cases similar to this one has seen the EAT finding that the response of the employer was excessive and disproportionate.
But the fact that Keelings Logistics Solutions had only one customer and there was naturally a very high degree of trust required between them and their customer seems to have been critical in the EAT finding that the zero tolerance policy was reasonable.