Tribunal rules that worker sacked over chicken nuggets was unfairly dismissed
A customer service adviser was unfairly dismissed after he was accused of becoming “aggressive and violent” for receiving what he saw as an unfairly small portion of chicken nuggets for lunch in the canteen, a tribunal has ruled.
The tribunal found that the investigations focus on only two witness statements was unreasonable. A significant weight was placed on his presumed anger and red face – but overlooked the employee’s health condition which can affect his complexion. The company’s investigation and disciplinary placed considerable weight on confirming his guilt.
In September 2019, Mr Smith, the complainant was involved in an “incident” in the office canteen, when he asked for “chicken nuggets, chips and cheese” and was given three nuggets. Smith claimed that he did not want the food, slid the food back to the canteen staff and that other customers had been receiving four or five nuggets.
The incident was flagged by a security guard at the canteen to the team manager, Ms Marshall. Marshall alleged that Smith had acted “aggressively and with potential violence”.
Smith was suspended on full pay and at the subsequent investigation meeting with Marshall and HR, the tribunal heard that Marshall did not ask all of the prepared questions. As part of the investigation, Marshall interviewed the two canteen assistants, who claimed Smith was noticeably angry and forcefully pushed the box back, adding that his face was “bright red” and then “stormed off”.
In the follow up meeting, Smith denied storming off, but left to report the incident to a manager, and explained his health condition could make his face go red. Smith maintained he believed he conducted himself in the correct manner, and handed Marshall a grievance letter as he felt was being victimised. Smith also queried why the manager he spoke to had not escalated the issue, and said he believed the statements had been fabricated.
The grievance noted that at the time of the incident, Smith had been working overtime, near to a 12-hour shift and needed to take his medication. He also admitted that his shock at the portion size caused him to say “if I wanted a Happy Meal, I would go to McDonald’s”. The tribunal heard that the grievance 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.
The tribunal heard other employees were present when the incident took place but Marshall took no steps to identify who was present and accepted the position of the canteen assistants without further enquiry.
Marshall appointed team leader Mr Stewart – whom the tribunal said was experienced in conducting disciplinaries – to deal with the hearing. The tribunal heard she told Stewart that she thought Smith was “capable of acting in the way the allegations suggested” as she had previous experience of his “outbursts”.
Smith was invited to a disciplinary meeting on 7 October for “acting violently” and “fighting or physical assault, using rude and abusive language and behaving immorally”. Throughout the meeting, Smith maintained he had not acted violently or aggressively towards the canteen assistant. Smith said he was “forcefully” being made to accept something that he did not do.
Stewart made the decision to dismiss Smith for gross misconduct. While Smith had already prepared his appeal letter ahead of the meeting, the dismissal letter recognised his desire to appeal but did not acknowledge his grievance.
An appeal meeting was set for 18 October but Smith did not attend as he had not been well throughout the process, was “scared to attend the office” for fear he would be “accused of doing something wrong” and that his grievance had been ignored. Smith’s appeal was not upheld.
The tribunal also noted that in April 2021, one of the canteen assistants who suggested Smith had sworn asked for her statement not to be used, saying the issue had been “blown out of proportion”.
The tribunal said that, based on the balance of probability, Smith “did not shout or raise his voice unreasonably” and was not aggressive, but was obviously upset at how he had been treated while in the throes of a 12-hour shift.
Employment Judge Hoey said that the investigation into Smith 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. Hoey added that the sarcastic remark about a Happy Meal was not by itself abusive.
All of Smith’s claims were upheld – 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 serves as a stark reminder for all employers that a proper, thorough and unbiased investigation process is always required, in order to avoid further problems down the line and minimise risk. Talk to advo today for hr advice regarding any of the issues in this article.