The Law behind the Headlines – (Mirror online 30 July 2020)
Have you ever read the employment law stories that have made the headlines and wondered how the employer got away with it or even, could you get away with it too? We take a look at the stories making the news and explain how we think these employers are, or should be, applying employment law to the information reported.
Dismissal of Bakery Manager
Megan Metcalfe worked at Birds Bakery for 44 years, 25 of those as a Manager. Some reports say she was a Bakery Manger while others, a Bakery Assistant. Birds has a card-only policy preventing staff from accepting cash payments to protect staff and customers by minimising any risk of coronavirus transmission between them.
Ms Metcalfe was accepting cash from customers; she asked customers to put the money straight into her purse whilst using her own debit card to pay for items thus making it appear as if the transaction was done via card. It is reported that she took around £180 of payments.
Following her suspension on full pay for one week and a disciplinary hearing Birds dismissed Ms Metcalfe for gross misconduct.
Ms Metcalfe told Nottinghamshire Live “I realise what I was doing was against company policy. But they had picked up the items and already gotten to the till ready to buy them. There’s no way I could let an elderly man or woman walk away telling them they could not buy it because they didn’t have a card. They had also already handled the stock so that would have to be binned or cleaned”. She added, “I was just trying to do the right thing. I am really upset by it of course…I should not have done it but I don’t like to let people down and a lot of these customers depend on us, coming to us every day”.
Lesley Bird, chief operating officer at Bakery, said: “At Birds, we take the safety of our staff and customers very seriously – and have very tight procedures in place during this pandemic. A lot of our customer base are the elderly – many of them vulnerable – and it is our responsibility to keep them, and our staff, safe… In the case of Megan Metcalfe, she was taking cash from customers and then making payments with her own card. This contravenes our current health and safety policy relating to Covid-19 and is also against company regulations”.
A ‘fair’ decision?
Your first thought might be that seems a little harsh. After all, she has 44 years’ service, she’s admitted she was in the wrong and she was only trying to help customers. On the other hand, a rule is a rule, right? And that rule was there to protect the customers she says she was just trying to help, and if she knew what she was doing was wrong, then her reasons are irrelevant.
On the basis of what has been reported, those in the ‘a rule is a rule’ camp would be right.
The card-only policy was known and understand (that’s admitted to by Ms Metcalfe) and it’s likely that the consequences of any breach were too. It doesn’t matter if the disciplinary procedure had not been updated to state a breach could result in dismissal (in any event, lists of examples of gross misconduct are often expressed as non-exhaustive). In this case, the key point is it has been clearly communicated to staff.
We suspect that Ms Metcalfe’s breach was deemed to be an act of gross misconduct. However, a finding of guilt does not necessarily follow that dismissal without notice is the appropriate outcome. An employer should consider any mitigating circumstances, for example, length of service and disciplinary record. But long service and an unblemished disciplinary record will not necessarily prevent dismissal. An employer can balance these factors against the employee’s position, the actual or potential harm to the business, its staff or customers and, of course, the seriousness of the misconduct itself. In addition, the vast majority of employers take a dim view of health and safety breaches.
Ms Metcalfe may have wanted to help her customers but it was not for her to decide if and how she should do that in these circumstances. She ought to have raised the issue with her line manager.
What about what we know about the procedure Birds adopted? A fair dismissal requires:
- An investigation, conducted without unreasonable delay, to establish the facts. We don’t know how soon, after learning of the problem, Birds conducted an investigation and if it included an investigatory meeting with Ms Metcalfe. But it appears that it gathered together the evidence of the alleged misconduct (this could have included dates, times, statements from customers or other employees and possibility even CCTV footage) and the amounts involved as well as identifying the policies alleged to have been breached. On the face of it, this would have given Ms Metcalfe sufficient information about the alleged misconduct and its possible consequences.
- A suspension that is necessary, kept as brief as possible and paid at full pay. Necessary does not mean sending a message to others that this type of conduct is not tolerated but where, for example, working relationships have severely broken down, an employee could tamper with evidence or influence witnesses or there is a risk to other employees, property or customers. An alternative to suspension should always be carefully considered. Here, the period of suspension was only one week and perhaps the view taken by Birds was there was a potential risk of allowing her to continue serving customers and no other duties she could perform instead.
- The employee to be informed fully of the allegation and a disciplinary hearing. If there’s a disciplinary case to answer, the employee should be notified of this in writing and given copies of any written evidence (or CCTV) so he or she can be fully prepared to answer the case at the hearing. The letter should also give details of the time and venue and inform the employee of the right to be accompanied.
- A right of appeal. We don’t know if Ms Metcalfe appealed the decision to dismiss her, but an employer should always give a right of appeal.
Should I have Covid policies?
It can be helpful to have workplace policies to provide guidance and advice to employees about how the pandemic has, or may, impact on their working practices. At the very least, existing policies should be reviewed and updated where necessary, including sickness absence and pay, flexible working, home working, health and safety, IT and data protection.
Birds created a new cash-only policy in response to the pandemic, no doubt something that was identified as necessary after a health and safety risk assessment and these too should be kept under review to ensure new policies, where needed, are identified and rolled-out.
If you need any advice about a dismissal connected with the pandemic or any policies and procedures get in touch with Blackadders’ Employment Team.
The opinions expressed in this site are of the author(s) only and do not necessarily represent the opinions of Blackadders LLP.
Blackadders takes all reasonable steps to ensure that the content of this site is accurate and up to date. The site is not, however, intended as a substitute for seeking legal or other professional advice but rather as an informative guide to the services provided by Blackadders and topical legal developments. Site visitors should always seek advice tailored to their specific situation. Consequently, Blackadders accepts no responsibility for any loss or damage suffered by anyone acting or failing to act on the basis of information contained on this site. Downloading of material contained on this site is at the user’s own risk and all necessary virus checks must first be carried out by the user. Blackadders is not responsible for the material found on any web sites linked to this one and links to this site may only be made with Blackadders prior consent.
Blackadders owns the copyright in this blog and all material contained on it. The material on this site may be downloaded for personal use only and must not be altered. Otherwise, Blackadders’ written consent is required before any material on this site is reproduced, copied or transmitted in any way.
Information passed to us via this site is kept confidential and will not be disclosed to third parties except if authorised by you or required by law.
© Blackadders LLP 2022
Members of the Law Society of Scotland.
Blackadders Solicitors is a trading name of Blackadders LLP, a limited liability partnership, registered in Scotland No SO301600 whose registered office is 30 & 34 Reform Street, Dundee, DD1 1RJ. Reference to a ‘partner’ is to a member of Blackadders LLP.