Earlier this year, a manager who provided Tesco supermarket with 20 years of ‘blemish free’ service, was dismissed for “initiating and sustaining physical contact and detaining a shoplifter”. The employee consequently took the supermarket giant to an Employment Tribunal where he was successful in his claim for unfair dismissal.
Had the Claimant Breached Company Policy?
Tesco tried to argue that the Claimant had breached its company policy in relation to such incidents when he took the decision to physically restrain the shoplifter. A summary of the policy by the Judge outlined that, where a customer is suspected of shoplifting, the employee should:
- approach the customer and ask if they require assistance, unless the employee feels threatened
- escort the customer to the store office and issue a banning letter
- await the police or take some other appropriate action.
The policy made clear that the employee should not restrain the shoplifter to get them to the office, or to await the police.
The Claimant, Mr El Gorrou, had noticed the shoplifter and invited him into his office, as he had been trained to do so by Tesco and in line with the company policy. It is interesting to note that this particular store was considered high risk due to the number of shoplifters who became violent, however no security guards were supplied to the store.
nd invited him into his office, as he had been trained to do so by Tesco and in line with the company policy. It is interesting to note that this particular store was considered high risk due to the number of shoplifters who became violent, however no security guards were supplied to the store.
How Did the Allegations Come to Light?
At first, the Claimant did not feel threatened by the shoplifter, but the man then became aggressive. Employment Judge Stephen Knight said: ‘He spat at [Mr El Gorrou]. He had in his hand a key, which [Mr El Gorrou] at the time thought was a screwdriver. Outside the office were staff and customers who could get hurt. [Mr El Gorrou] was close to the shoplifter at the time. He had already approached him before the shoplifter became threatening. He then made a split-second decision to restrain the shoplifter to protect himself and others.’ The Judge went on further to add that ‘there were no reasonable grounds on which [Tesco] could have concluded that Mr El Gorrou acted otherwise than in response to disgusting and violent actions by the armed and threatening shoplifter.’
The allegations against the Claimant only came to light 10 weeks after the incident after a whistle-blower sent in a clip of the CCTV footage and complained about the Claimant’s actions. The Tribunal was told that the whistle-blower had some sort of vendetta against the Claimant, and that the allegations they’d made against him were malicious and false.
The employment tribunal judge criticised Tesco for not being more suspicious of the origin of the claims and said ‘the CCTV is completely decontextualised. It does not show what happened immediately before [Mr El Gorrou] took a step towards the shoplifter. Any reasonable employer would also conclude that this was suspicious, and that the footage immediately before could have been edited out by the “whistle-blower” to make Mr El Gorrou look worse. ‘A reasonable employer would ask why the footage had been edited in this way.’
Why Did the Judge Decide It Was Unfair Dismissal?
The Judge did not find that Tesco had reasonable grounds to conclude that the Claimant breached its policies or that in the CCTV footage, the claimant acted other than in reasonable self-defence and defence of others. He had to make a split-second decision about what defence was required. The Judge also found that, even if the claimant had breached the policy, dismissal was not within the band of reasonable responses.
The Judge found that, when viewed objectively, the Claimant’s actions were reasonable in all the circumstances and that he found the Claimant to be an honest and reliable witness. Tesco’s main mistake here was that they did not follow a thorough and fair disciplinary process. Instead, they simply took a very small part of the overall evidence at face value and did not consider the reasonableness of the Claimant’s conduct in all of the circumstances of this particular incident.
This is another good case that illustrates the importance of carrying out a thorough and fair investigation and disciplinary process, and to not rush into making decisions – especially when such decisions can result in the termination of someone’s employment or unfair dismissal claims against the employer.