The Employment Appeals Tribunal (the EAT) has dismissed a claim brought by a former employee following her dismissal for gross misconduct after she had drank a hot beverage (without paying for it) in the course of her employment in breach of a workplace regulation (Valerie Byrne v Marks and Spencer Ireland Limited (UD 826/2013). The case was an appeal from a Rights Commissioners determination on the matter.  The outcome is good news for retail employers seeking to enforce a zero tolerance policy regarding theft in the workplace.

The claimant was spotted drinking a coffee by a member of security staff while monitoring CCTV footage. As a result, an investigation was initiated and she was then suspended, pending further investigation. A disciplinary investigation was subsequently commenced.

The EAT was critical of a number of procedural aspects from the employer's perspective. It took issue with the manner in which the investigation was run. In particular, it criticised the fact that the same person that initiated the investigation, went on to deal with the disciplinary stage. There was a failure to outline fully the nature of the complaint and the evidence against the claimant. Also the dishonesty/forgery section on which the company was relying should have been pointed out to the claimant as it was clear that the company was relying on this section of their handbook as the basis upon which they were entitled to summarily dismiss an individual regardless of the minimal value of the dishonest act.  It was ultimately on this last part that the claimant's case failed as the EAT noted that there can be "no doubt that the policy within the company is that there is to be no toleration of theft, no matter what its form and no matter what it's value".

The case is good news for retail employers as it demonstrates the value of having well drafted and tight policy in the company handbook regarding its approach to theft/dishonesty in the workplace. The importance of the policy is key in this case, as the EAT had found (as outlined above) a number of procedural flaws with the investigation. The EAT in its determination also stated that the dismissal, whilst "undeniably harsh", was not unfair. These comments are again useful for retail employers in promoting a zero tolerance policy to any form of theft, no matter how minimal, in the workplace.