A Greggs' bakery operative was dismissed for gross misconduct after breaching the company’s policy of washing hands before re-entering the food production area.
Following the employee’s claim of unfair dismissal, the Tribunal ruled that the dismissal was fair.
Facts
Mr Donovan was employed by Greggs as a bakery operative for 11 years. He was dismissed for gross misconduct for failure to wash his hand before re-entering the food production area.
Mr Donovan accepted that failing to wash his hands was a breach of Greggs’ policies, but described this as a mere “lapse”. He re-entered the food production area after going to a locker room to collect equipment used to take loaves of bread from a hot oven and had been so focused on his next job that he had forgotten to wash his hands.
He claimed unfair dismissal on the grounds that it was “too harsh” and outside of the range of reasonable responses.
Greggs maintained their decision to dismiss was reasonable because of its zero-tolerance approach to breaches of its hygiene rules. Greggs’ position was that “there’s a risk that they (the employee) might take bacteria or pathogens into the bakery and cause food illness or a poisoning outbreak” and that the breach of the company rules may have potentially been “lethal.”
Law
Under the Employment Rights Act 1996, where an employee with appropriate qualifying service is dismissed, the dismissal will be unfair unless:
- The employer shows that the dismissal was for a potentially fair reason - such as conduct; and
- In all the circumstances the employer acted reasonably in treating that reason as a sufficient reason for dismissal.
The test as to whether the employer acted reasonably is an objective one. The tribunal has to decide whether the employer's decision to dismiss the employee fell within the range of “reasonable responses”, in other words, that a reasonable employer in those circumstances and in that business could have come to the same conclusion.
It is important to note that the tribunal will assess the reasonableness of the employer’s decision, not the level of injustice to the employee.
Decision
The Tribunal found that the dismissal was fair and that Greggs acted within the range of reasonable responses. It was accepted that the employer’s principal reason for dismissal was that Mr Donovan could not be trusted to follow hand-washing rules and that he posed a risk to Greggs’ customers and reputation.
The Tribunal also stated that although Mr Donovan’s length of service could be a mitigating factor, taken with his experience in the food industry of over 25 years, it constituted a “double-edged sword” as Greggs was entitled to have expected better from such an experienced employee.
Comment
Ben Doherty, Partner and Head of our Employment team comments:
“The decision here seems harsh, especially in light of Mr Donovan’s lengthy service.
“It is often difficult to determine whether an employee’s conduct should be classed as gross misconduct justifying summary dismissal or simply misconduct where a lesser sanction such as a warning would be more appropriate.
“It is vital for employers in this situation to have clear policies setting out what they consider gross misconduct – usually on the basis of what is important to their industry or sector. In Greggs’ case this was hygiene, and as the importance Greggs placed on hygiene was clear, the dismissal, although harsh, was within the range of reasonable responses.
“If you are in any doubt about whether your policies are suitably tailored, contact us to discuss.”
