Gross Misconduct in the Bagging Area

The Employment Tribunal (ET) has ruled that a Sainsbury’s employee, who had worked for the company for almost 20 years, was fairly dismissed for gross misconduct, after they were found to have taken bags for life, without paying. The ruling in Doffou v Sainsbury’s Supermarkets Ltd serves as a sobering reminder of the consequences of employee misconduct, no matter how minor the infraction might appear. Background The Claimant, Mr Doffou, worked at the Romford Sainsbury’s superstore as a night shift assistant. Following a shift in August 2022, Mr Doffou did some personal shopping but, at the self-service till, clicked the ‘zero bags used’ option, despite him taking multiple carrier bags to use to carry his shopping. Mr Doffou was caught on the shop’s CCTV taking the bags and selecting the ‘zero bags used’ option on the screen, which led to him being called to a disciplinary hearing with Sainsbury’s. At his disciplinary hearing, Mr Doffou agreed that he had taken the bags without paying for them but argued that he had been exhausted after his shift and had not realised what he was doing when he selected the ‘no bags’ option at the till. However, Sainsbury’s concluded that he had not acted in error, but instead had deliberately not paid for the bags that he had taken, reasoning that Mr Doffou took the view that, due to the low value of the bags, it did not matter if he took them without paying. In light of this, Sainsbury’s determined that his behaviour was dishonest and constituted a breach of trust between the employee and his employer. Mr Doffou was dismissed for gross misconduct on 16 October 2022. Following an appeal, where Sainsbury’s decision to dismiss was upheld, Mr Doffou subsequently took Sainsbury’s to the ET, arguing that he had been subject to an unfair dismissal. While he accepted that the reason for his dismissal was his conduct, he put forward that the investigation and appeal were procedurally unfair, that insufficient weight was given to his mitigating factors and that the dismissal fell outside the reasonable band of responses. Decision In its judgment, the ET agreed with Sainsbury’s that the dismissal had been just, asserting that the evidence provided, which included CCTV footage and the shopping receipts, clearly demonstrated that Mr Doffou’s actions were deliberate. Further, the ET judged that Sainsbury’s had carried out a reasonable and proportionate investigation into Mr Doffou’s conduct and had given him plenty of opportunities to explain the behaviour in question. The Judge stated that though the bags taken were of low value, Sainsbury’s was entitled to conclude that Mr Doffou had committed misconduct and concluded that the disciplinary hearing officer had correctly considered Mr Doffou’s length of service and the matter holistically. Because of the findings of dishonesty and theft, the Judge ruled that it was hard to argue that the decision to dismiss Mr Doffou fell outside a reasonable band of responses. In her reasoning for her findings, the Judge underscored the significance of trust in an employment relationship, stating one of the key items for her to consider was to understand exactly why Mr Doffou took the bags and that this had been achieved by allowing Mr Doffou every opportunity to explain his admitted actions. Learning points This case highlights the importance of upholding high standards of integrity and trust in the workplace. Employers should also endeavour to foster a culture of accountability within their workforce and ensure that there are clear policies and procedures in place. While questions might be raised about the proportionality of the punishment in relation to the offence, given the low value of the bags taken, the incident invites employers to reflect on the broader implications for both themselves and their employees in maintaining ethical conduct. Whilst one employer might decide that a final written warning is sufficient, this does not mean that another employer would err if they dismissed an employee for the same issue. It is not always the value of the items that is the issue, but that of the broken trust between employee and employer. How we can help For further information, or to discuss the issues raised within this case, please contact us to speak to a member of our Employment Team.