Introduction
In Oxborough v Lidl Great Britain a Tribunal found that consuming unauthorised items or products at work regardless of the value can be a dismissible offence for gross misconduct; this case highlights the importance of following correct procedures when dismissing an employee.
Background
Mr Oxborough, a Lidl employee was dismissed from his job after drinking a 17p bottle of water during his shift. He explained that the reason for drinking the water was due to dehydration whilst working on the tills.
The incident occurred on 19 July 2024; a customer attempted to purchase a bottle of water taken from a multipack; the bottle had no barcode and could not be scanned. The customer then swapped it for a barcoded one and left the original behind at the till.
Later, Mr Oxborough drank from the unpurchased bottle and topped up his own bottle; he continued to serve customers. The following day, a manager found the unpurchased consumed bottle at the till and suspected a breach of Lidl’s policy, which did not allow for consumption of products. After reviewing CCTV, Lidl suspended Mr Oxborough and began a formal investigation into the alleged gross misconduct.
During the investigation, Mr Oxborough said that he had been feeling unwell and dehydrated. He claimed that his squash was mixed too strongly. He also said he believed that the bottle could simply be written off; he had previously seen other unbarcoded bottles in the kitchen without receipts. When asked whether he had paid, he admitted he had not but said he could not clearly remember taking it. He explained that he forgot to deal with it properly, insisting he had not intended to do anything dishonest.
The area manager responsible for the disciplinary process noted that his explanations were inconsistent. She questioned why he did not use tap water instead and emphasised that he had time after the incident to report what had happened but did not. Given these factors, she concluded that dismissal on the grounds of gross misconduct was the only reasonable outcome.
Tribunal’s decision
The Tribunal held that the dismissal was fair, key findings included:
Reason for dismissal
The Tribunal accepted that the sole reason for dismissal was the Claimant’s conduct. Lidl’s policies and training materials made it clear that consuming products without payment amounted to gross misconduct.
Reasonableness of the decision to dismiss
The Respondent maintained that the Claimant’s actions constituted gross misconduct, consistent with its zero‑tolerance approach to theft.
The Tribunal found that the dismissal was reasonable, the key considerations included:
- That the Claimant had recently received training which clearly set out that consuming products without paying would be treated as theft.
- That the Respondent had reasonable grounds for believing the conduct was deliberate.
- Took into consideration his 10 years’ service, Mr Oxborough was familiar with Lidl’s policies on staff use of products.
- The incident was admitted and supported by CCTV.
While other employers might not treat the consumption of a low‑value product as gross misconduct, this did not render Lidl’s approach unreasonable in the context of its business. The Respondent had regular training reminders and applied a consistent zero‑tolerance policy reasonably justified by the nature of its retail operation.
Conclusion
The Tribunal concluded that the dismissal was fair. The policies were clear, the Claimant was fully aware of them, and the Respondent had good cause to view the conduct as theft.
Lessons for employers
It is important to publicise workplace policies and follow a fair disciplinary process. Having robust policies support employers to justify disciplinary action.
Without a robust policy, Lidl may have faced challenges in arguing that Mr Oxborough’s behaviour amounted to gross misconduct. Without a zero tolerance policy employees could argue for an exception to be made; it can sometimes be difficult to know where to set the bar, but maintaining robust policies are essential to protect employers against misconduct.
How we can help
For further information or to discuss issues relating to disciplinary investigations, or reviewing internal policies, please contact us to speak to a member of our Employment Team.
