An employment tribunal has held that an experienced employee should have appreciated the seriousness of breaching his employer’s hygiene rules and it was appropriate for the employer to dismiss him.

Dismissal

The claimant was employed at a bakery and had 11 years’ service in this job. While working, he left the production area to fetch protective equipment from a locker room so that he could work with ovens, a change to his normal duties. He did not wash his hands before re-entering the production area. The employer dismissed the claimant after conducting an investigation and holding disciplinary hearings. The claimant brought a claim for unfair dismissal in the employment tribunal.

Acknowledgement

The claimant acknowledged that he had failed to wash his hands in breach of his employer’s policies. He accepted that the process that led to his dismissal was fair. His argument before the employment tribunal was that the dismissal was outside the band of reasonable responses and, in the circumstances, too harsh.

The employment tribunal concluded that the employer’s decision to dismiss the employee fell within the range of reasonable responses and the dismissal was fair.

Unacceptable Risk

The tribunal held that, although it was possible that other employers may have taken a different approach, the circumstances were such that a reasonable employer could have dismissed the employee. The employer’s principal reason given for dismissing the employee rather than imposing a lesser penalty was that he could not now be trusted to follow hand-washing rules and so posed an unacceptable risk to its customers and reputation.

The tribunal viewed the employer’s “zero-tolerance” approach to hand-washing procedures as reasonable in “a competitive industry where an outbreak of illness traced back to [it] could have serious consequences in terms of their reputation and success as a business”. In line with this view, the tribunal rejected the claimant’s argument that his failure to wash hands after obtaining equipment from a locker room was less culpable than someone who failed to do so after, for example, visiting the toilet.

Experience

In relation to the claimant’s length of service, the tribunal considered that it was a factor to be taken into account when considering whether or not dismissal was an appropriate sanction. However, the claimant’s length of service, together with his experience in the food industry of over 25 years, was a “double-edged sword” as it was reasonable to expect an experienced employee to “know better” and appreciate the seriousness of his actions. The application of this principle outweighed the potential greater leniency that could be accorded to the claimant because he had shown regret and accepted responsibility for misconduct.

Practical tips

Employers should ensure that they have clear procedures in place for reporting and gathering evidence where a breach of health and safety rules is suspected.

This is critical where employers may need to immediately challenge an employee suspected of failing to follow rules that could lead to significant harm to their reputation as well as to their customers.

 

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