How a disagreement over chicken nuggets turned into an employment tribunal
A worker sacked for ‘violence’ over canteen chicken nugget meal was unfairly dismissed, tribunal rules.
Mr S Smith V Teleperformance Limited: 4111842/2019
Employee wins unfair dismissal claim following chicken nugget spat after employer isolated their investigation to a limited number of witnesses and relied on presumptions about his behaviour.
Smith was employed as a customer services advisor and had worked for Teleperformance Limited for nearly three years at the time of his dismissal.
On 27 September 2019, Smith visited the office canteen while he was completing a 12-hour shift. He ordered chicken nuggets, chips and beans with cheese. Smith said that he was only given three nuggets by the canteen assistant when other customers were receiving four or five. Seeing this, Smith claimed he no longer wanted the food and “slid the box back” towards the canteen assistant saying if he’d wanted a happy meal he would have gone to McDonalds.
The incident was brought to the attention of a team manager, Ms Marshall. After liaising with other managers, she decided that Smith should be suspended on full pay pending an investigation, telling the tribunal that he had acted “aggressively with potential violence”.
On 30 September 2019, Smith attended a meeting with Marshall as investigation chair. Marshall, who attended with HR, did not ask all the prepared questions during this meeting. She interviewed the two canteen assistants who had claimed that Smith was noticeably angry and “forcefully” pushed the box of food saying, “I’m not a f***ing kid”. The canteen assistants added that Smith’s face was “bright red” and they’d felt like he could have reacted angrily if they’d opened their mouths.
On 2 October 2019, Smith attended a further investigation meeting with Marshall. When asked why the canteen assistants could have felt threatened, Smith said that he just wanted to eat and get back to work. Smith denied “storming off” adding that he was dissatisfied with the service he received and reported this to a manager. Smith also described being in the middle of a lengthy shift, having a health condition which had caused his face to redden and taking medication that required him to eat. Smith handed Marshall a grievance letter alleging that he was being discriminated against and victimised. The letter also contained a note from a GP confirming that Smith had been seen at the out-of-hours primary care centre earlier that day.
Marshall adjourned saying that the grievance would be dealt with after the investigation.
When considering matters further, the tribunal heard that other employees were present when the incident took place, but Marshall took no steps to identify who was present. Instead, she decided not to investigate further and accepted the position of the canteen assistants without further enquiry.
Mr Stewart, a team leader, was appointed to deal with Smith’s disciplinary hearing. The tribunal heard how Stewart had been informed by Marshall that Smith was “capable of acting in the way the allegations suggested” given previous experience of what she termed “outbursts”. Further, Stewart was told that Marshall hadn’t asked all the prepared questions during her initial meeting because she felt Smith could “kick off at any point”.
Smith was invited to a disciplinary meeting on 7 October 2019 for “acting violently” and for “fighting or physical assault, using rude and abusive language or behaving immorally or obscenely towards other employees”. Smith was dismissed for gross misconduct and the dismissal letter failed to acknowledge his grievance.
Smith did not attend an appeal meeting set for 18 October 2019 saying that he was frightened to attend the office in case he was accused of something else and that his grievance had been ignored. Smith’s appeal was not upheld.
The tribunal found that, based on the balance of probability, Smith “did not shout or raise his voice unreasonably”. Whilst obviously upset at how he had been treated, Smith hadn’t been aggressive during the incident in question. Marshall’s focus on only two witness statements was unreasonable. The tribunal also found that the investigation fell out of the “range of responses open to a reasonable employer” because it placed “significant weight” on the evidence given of Smith’s demeanour and their belief he had been angry, while overlooking his health condition which could affect his complexion.
Smith was awarded more than £6,000 for unfair dismissal, loss of statutory rights, wrongful dismissal, an unreasonable failure to follow the ACAS Code of Practice and a further compensatory award.
The case is a clear reminder of the importance of a reasonable investigation. It also illustrates the danger of an investigation chair extending their involvement beyond what is generally acceptable. ACAS state in their guidance on ‘Conducting Workplace Investigations’ that doing so, could heighten the risk of bias, and the likelihood of an unfair decision being reached
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