Last month the BBC reported the Employment Tribunal’s decision that it was fair to dismiss a Mr Doffou for gross misconduct because he had not paid for a handful of bags he packed his shopping in after his shift. Mr Doffou had been happily employed at Sainsbury’s in Romford for nearly 20 years when given his marching orders and the bags he took cost less than £1 each.

Judging by the number of “Oh, come on, how can that be fair?” queries we are receiving, there seems to be some gap between public sensibilities (not their bags, I suppose) and the separate question of when it will be fair for an employer to terminate its employee’s employment. Mr Doffou’s misfortune is therefore an opportune moment to revisit the fundamentals of a conduct dismissal.

Those fundamentals were set out over 40 years ago in long-time Law School favourite, British Home Stores Ltd v Burchell, and remain unchanged. They are:

1. an employer must conduct a reasonable investigation in the circumstances;
2. leading to a genuine belief that the employee has committed misconduct;
3. the employer’s belief that the employee has committed misconduct is based on reasonable grounds; and
4. whether the decision to dismiss is within the band of reasonable responses in the circumstances.

If you’re looking at your home desk tidy packed with your company’s biros, post-its and other useful bits and bobs gathered inadvertently over the years with some sudden nervousness, Mr Doffou’s fate needn’t cause you any lost sleep. In the case of genuinely inadvertent hoarding there is limited cause for concern. Mr Doffou sought to say that his taking the bags was the product of fatigue, forgetfulness or a lack of understanding that the bags were not free. If he had succeeded in any of those, i.e. he had not been found to have acted dishonestly, then his long service and the marginal cost of the bags would have carried much greater weight as mitigation. The challenge facing Mr Doffou, however, was the CCTV footage that showed him clearly and intentionally making more than one trip to get bags after selecting the ‘zero bags used’ option on the till and even checking his receipt at the end of his shopping. Despite his efforts to persuade the disciplinary manager and Employment Judge otherwise, there was clearly no doubt of his intention in the circumstances.

The common reaction we have heard is ‘Sowhat’? So what, that an employee of nearly 20 years pinches a handful of bags that would have otherwise been sold at less than a quid each to carry his £30 shop? However, when pushed, all the clients I have talked to about this ultimately concede that the bags belonged to Sainsbury’s and that Mr Doffou’s actions amounted to theft… but there is a palpable feeling that it just can’t be fair to dismiss where the value of the items taken is a meagre few pence, right? Wrong. In terms, the Tribunal explained that Sainsbury’s ‘was entitled on the evidence to conclude that the Claimant had committed misconduct notwithstanding the low value of the bags taken’. The more interesting question for present purposes is point 4 above, i.e. whether despite Mr Doffou’s long and blameless service and the negligible value of the bags taken, dismissal could still fall within that range of reasonable responses. Surely any reasonable employer would have given him a metaphorical clip round the ear and called it quits?

An interesting question asked by one contact is whether it would have made any difference if the item taken by the employee was not intended to be sold? We think not. The definition of theft is not limited to where property is taken from a person who intends to sell it and that of course must be right. Therefore, although we would expect an employee to argue this was a mitigating factor taking dismissal outside of the range of reasonable responses, we very much doubt the success of that argument. Relatedly, what if the item taken was actually intended to be given away, perhaps branded pens, stress balls (remember them?) or notepads? We consider that the same principle would apply – they are intended for people who may theoretically be seduced by a logo-d memory stick or posh biro into using a company’s services or joining its staff, not for people who already work there.

The Tribunal’s decision in Mr Doffou’s case is not authority that tenure means nothing. Mr Doffou’s tenure was taken into account by the disciplinary manager as it should have been, but his having stuck around for a long time did not entitle him to take something that did not belong to him. It was in the end an act of dishonesty. However, the case does indicate that where an employee takes something belonging to their employer then the decision to dismiss is likely to be safe because it is very easy to justify the employer’s conclusion that the relationship of trust and confidence has broken down. Dishonesty is dishonesty and once found, that remains the case almost regardless of its gravity, from large-scale fraud to white lies around a “sickie” to a handful of cheap bags. In addition, of course, Sainsbury’s could not allow it to be suggested to the whole of its 160,000+ workforce that there was any wriggle-room at all around that proposition.

What factors might mitigate a finding of dishonesty so as to take dismissal for it outside the range of reasonable responses? Not many – some level of mental health condition, perhaps, or addiction issues or evidence that the employee was so far over the breadline that he literally had to steal to survive. It would have to be pretty extreme stuff. Nonetheless, if there are mitigation arguments advanced by the employee, these need to be seen to be considered. Failure to do so could make the dismissal unfair, a particularly galling outcome for the employer in a dishonesty case and there would not be much consolation to be gained from the ET’s dinging the employee’s compensation for his contributory fault.

This case is also a reminder that the band of reasonable responses test does not involve asking what a reasonable employer would have decided to do in similar circumstances. The question is whether the decision to dismiss was one which that employer in those circumstances could reasonably reach, even if others (or the ET itself) would have made a different decision. Put differently, could it be said that dismissal in this case was a decision no reasonable employer could have made? Obviously not. Although I might have gone for the option of giving this employee a fairly vigorous carpeting, the Tribunal’s decision is clearly the right one at law.