Ask most normal people whether an employee should be sacked for one incident in which she put slightly too many sprinkles on a McFlurry and the most common answer will surely be ‘of course not’. It seems obvious that a decision to dismiss in such circumstances would be unfair and that the employee will win her unfair dismissal claim.
Well it isn’t obvious, and she might not.
The story is one of those with a clear human interest angle and so you can glean the facts of the case from a wide number of press reports including the Mirror, the Sun and the Mail.
Essentially, the claimant says that when she served a fellow employee with a dessert he said ‘make it a nice one’ and she sprinkled slightly more than the average number of chocolate pieces over the top of it. For that she has been sacked on the grounds of stealing food.
I’m not going to defend that decision. It seems very harsh, and a 19 year old employee with a previously unblemished record has certainly been put in a difficult position when it comes to future job applications. I have every sympathy for her, and I wish her mother well in representing her at the Tribunal. If she is reading this, however, I hope she won’t mind if I give her some advice.
Dear Mrs Finch
Welcome to the world of employment law. The best advice I can give you is not to let your own anger about Sarah’s dismissal get in the way of putting your case effectively. You are going to have to do more than persuade the Tribunal that the decision to dismiss was a harsh one or that Sarah did not intend to do anything dishonest. What matters is whether the dismissal fell outside of the ‘range of reasonable responses’ open to an employer. The question is not whether the Tribunal agree with the decision to dismiss, or even whether most fast food outlets would have dismissed – the questions is whether a reasonable fast food restaurant could have dismissed in these circumstances.
The employer is going to argue that if every employee were allowed to err on the side of generosity in a serving in order to please a friend or colleague then it would lose control of its stock, and its margins would suffer. That is an argument that the Tribunal will take seriously. An employer in this sort of environment is entitled to adopt a ‘zero-tolerance’ approach to issues such as serving size and treat any breach as gross misconduct.
So, if you argue the case on the basis of ‘its just a bit of chocolate’or ‘its a trivial amount’ then there is a real danger that you will lose. A tribunal may well accept the employer’s point that when it comes to stock control there is no such thing as a trivial amount.
The Tribunal is likely to have considerable sympathy with your daughter, but you need to give them a clear route to a finding of unfair dismissal. What you need to focus on is how effectively the employer communicated its incredibly strict approach to these issues. The question the Tribunal is likely to ask is ‘should an employee in Sarah’s position have understood that a generous helping of chocolate sprinkles would be a dismissable offence?’ So concentrate on the clarity of the rules, and whether it was expressly stated that they applied not just to whole portions of food, but also to servings that are not strictly measured like chocolate sprinkles.
It seems that there were notices up in the staff room – do those notices make it clear that it is gross misconduct to be a bit generous with portions, or do they just say that ‘theft’ of food will result in dismissal? If the latter, then you might have a strong argument that employees would not necessarily understand that to apply to an above average sprinkling of chocolate. But if the rules are very clear about how strictly they will be applied then you may struggle.
Of course, you can argue that this incident is so trivial as to be outside the range of reasonable responses, but this can be difficult. The Tribunal will be wary of substituting their own view of the case for that of a McDonald’s franchise owner.
Best of Luck
I genuinely hope that Sarah wins her case. But the fact that this is not a given illustrates how limited a right unfair dismissal is. Perhaps the papers reporting (with some sympathy) the ‘Case of the Generous McFlurry’ could bear that in mind the next time they report (with even more sympathy) the complaints of the employer’s lobby that employment law is too much on the side of the employee.
This reminds me of the infamous milkshake-stealing case of Rentokil v Mackin, the only known case in which a Tribunal found that a dismissal was outside the reasonable range of responses on the grounds of triviality and that decision was upheld by the EAT.
I wonder what happened to the other employee, who aided and abetted (or counseled and procured) the “theft” and/or handled the “stolen goods”. Subject to the answer to that question, could there be a consistency argument here? If the employer did not act reasonably in treating the offence as a reason for dismissal, surely Ms Finch wins…