The question
This is a bit of an odd situation that I’ve not come across before.
Employees have been commenting for a while that food has been going missing from the fridge in the staff room. In fact, one member of staff stuck a note on a tub of salad saying ‘if you like it that much, I’ll make you one’.
On Friday, a member of staff walked into the staff room and witnessed a colleague taking food out of another person’s lunch box. There was a short exchange of words and the witness then reported the incident to her line manager.
The person with her hand in the fridge went home sick and doesn’t work on Mondays. The other employees are outraged so I am considering calling her and suspending her while I sort it out.
Theft is a gross misconduct offence, but would this amount to that or should I be looking at a more lenient warning? I’d be grateful for any advice.
The legal verdict
Matthew Whelan, a solicitor at Speechly Bircham
You are right that theft can amount to gross misconduct.
You could suspend the employee (in accordance with a contractual right to do so) if you consider the matter sufficiently serious to require it, although you may need to justify your decision for doing so. But you would need to do this promptly (otherwise the justification behind the suspension may be diluted) and then also carry out your investigation and any further steps as quickly as possible.
The investigation should be undertaken before you decide whether to instigate a formal disciplinary process. It may be that there is a valid explanation to what happened. You will also need to follow a fair procedure if you are going to take disciplinary action and should follow the ACAS Code after taking into account any internal procedures that you have in place.
Whether you dismiss the person concerned or give them a warning depends on individual circumstances and what the employee says in response to the allegations. You should consider these matters once you have investigated the situation and followed due process.
Matthew Whelan is a solicitor at Speechly Bircham LLP.
Esther Smith, a partner at Thomas Eggar
Assuming that the ‘person with her hand in the fridge’ knew that the food did not belong to her and was intending to permanently deprive the owner of it (by eating it or throwing it away etc), this would constitute theft. The fact that it is food that is being stolen is incidental – the effect would be the same if the employee were taking money out of her colleagues’ bags.
Theft, of any kind, constitutes gross misconduct and, although you may prefer to issue a warning to the employee involved, a decision to dismiss summarily is likely to fall within the band of reasonable responses, subject as always to procedure.
You are also within your rights to suspend the staff member concerned, pending a full investigation, and to conduct a disciplinary hearing. You could impose the suspension over the telephone, but should follow this action up with a letter confirming the suspension and the terms that apply to it.
Dismissal of the employee, without notice, is likely to be regarded as fair if the result of the investigation supports the view that, on a balance of probabilities, she took the food and intended to keep it.
Given the nature of this offence and the other workers’ attitudes to it, it would seem that a suspension would be sensible, although the period of suspension should be as short as possible and be kept under review.
While you can choose to issue a warning to the staff member as an alternative to the above, your other employees are, as you say, outraged by this event and to act leniently could have a damaging knock-on effect on the reputation of the business, the trust between colleagues and productivity levels.
Additionally, you mention that there have been several instances of theft. Depending on the outcome of the investigation, you may find that these are not all attributable to the same employee and, therefore, the way you act now may act as a deterrent for others.
As with all disciplinary matters, you should refer to the ACAS Code of Practice and ensure that the correct process is followed, including holding a disciplinary hearing at the end of any investigation and communicating reasons for dismissal, if this is the eventual outcome.
Esther Smith is a partner in Thomas Eggar‘s Employment Law Unit.
