Employers can dismiss for theft of any item – no matter how small

by Direct 2 Lawyers on January 7, 2013

  • SumoMe

In the recent Employment Tribunal case of Kaczor v Booker Ltd the Employment Tribunal determined that the theft of any item may warrant a dismissal – however harsh the decision to dismiss is. We’ll take a look in this post at the facts relating to Kaczor v Booker Ltd, the law relating to misconduct and dismissals, and the Employment Tribunal’s decision.

  1. The facts in Kaczor v Booker Ltd
  2. The law relating to misconduct and dismissals
  3. The Employment Tribunal’s decision in Kaczor v Booker Ltd

The facts in Kaczor v Booker Ltd

Mr Kaczor, a warehouse cleaner, worked for Booker Ltd. His duties involved retrieving dropped items in the warehouse and of clearing up spillages of liquids – general cleaning duties. An incident occurred on 20 September 2011 when it was alleged that Mr Kaczor had taken a pot of Yogurt (worth 39p) from the shelves of the warehouse and eaten it. Poor-quality CCTV footage – the CCTV camera had been installed on 20 September 2011 after a number of pots of yoghurt had gone missing – from the warehouse recorded Mr Kaczor putting something in the back of his trousers and disappearing from view. A security guard later went through the CCTV footage and found this incident. Mr Kaczor was subsequently suspended and disciplined. At the disciplinary hearing the CCTV footage was replayed a number of times. Mr Kaczor made the argument that there was an innocent explanation for the nature of the evidence. The chair of the disciplinary hearing rejected his explanation and dismissed him for gross misconduct. Mr Kaczor later took employment law advice and submitted an unfair dismissal claim to the Employment Tribunal.

The law relating to misconduct and dismissals

If an allegation of misconduct is made against an employee – only employees can claim unfair dismissal in the Employment Tribunal – then the employer must make sure that (if they dismiss) the decision to dismiss the employee is both substantively and procedurally fair. To make a substantively fair decision the employer must:

  1. Conduct a reasonably thorough investigation into the matter
  2. Have a genuine belief (based on the investigation) in the employee’s guilt; and
  3. Have an honest belief (based on the investigation) in the employee’s guilt

In order for the dismissal to be procedurally fair the employer must (among other things) act in line with either its own specified disciplinary procedure or the ACAS Code of Conduct. An investigation should generally be held by an impartial third party (if possible) and a subsequent disciplinary hearing should then be held (also be an impartial party). The employee should be allowed to appeal their dismissal as well.

The Employment Tribunal’s decision in Kaczor v Booker Ltd

The Employment Tribunal ruled in favour of Booker Ltd and held that an unfair dismissal had not taken place. This decision was based on the fact that they accepted that there had been a proper investigation with the relevant parts of the CCTV footage being examined. The Tribunal also accepted that the employer honestly believed that the Claimant had stolen the yogurt and that this belief was based upon reasonable evidence and a reasonable investigation. Theft of items – even if only worth 39p – may therefore warrant dismissal; no matter how harsh the sanction may seem.

Direct 2 Lawyers offer free employment law advice for employees.

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