Crime inside employmentwill normally justify a dis-
missal on the ground of misconduct. For example, the
EAT has decided that an employee was dismissed fairly
on the ground of theft from the employer, even though
the employer could not specifically prove loss of stock
but had only a reasonable belief in the employee’s guilt.
No specific stock loss could be proved but the employee
had been seen by a security guard loading boxes into his
car at night at the employer’s warehouse (see Francisv
Boots the Chemist Ltd(1998)).
Dismissal on the ground of theft may also be fair even
though what is stolen is of little value. Thus, in Tesco
Stores Ltdv Khalid(2001) the employee was dismissed
for misappropriation of cigarettes from a petrol station
where he worked. His dismissal was held to be fair even
though the cigarettes were from damaged stock due for
return to the manufacturer. Dismissal was within the
range of reasonable responses of an employer.
Crime outside of employmentraises more difficult issues
and generally speaking the employer will have to show
damage to his organisation. Thus, in Post Officev Liddiard
(2001) a Post Office employee was involved in football
violence in France. His dismissal for this reason was held
to be unfair. It might be different, of course, where an ac-
countant has been convicted of dishonesty as treasurer
of a local charity for which he/she works part time and vol-
untarily, or where a teacher has been convicted of offences
involving violence in his/her non-work environment.
An employee’s use of drugs or alcohol outside the
workplace is unlikely to amount to a fair reason for dis-
missal, nor will the mere fact that an employee did not
reveal that he or she used drugs or alcohol when inter-
viewed for a post. However, use of drugs or excessive
drinking may constitute a fair reason for dismissal where
the employer believes on reasonable grounds that it
makes the employee unsuitable for the position held. An
employer who wishes to dismiss employees for drink or
drug misconduct should have a drink and drugs policy
and make it part of the employee’s contract.
3 Redundancy.Genuine redundancy is a defence. Where
a person is redundant, his employer cannot be expectedPart 4Business resources
544
between her and her employer. She was told that she
must remove it – which she was not willing to do – and
that if she did not she would be dismissed. She would
not remove the badge and was dismissed on 16 August
1976 and then made a claim for compensation for unfair
dismissal.
No complaint was made regarding the manner of her
dismissal in terms, e.g., of proper warning. The straight
question was whether her employers were entitled to
dismiss her because she insisted on wearing the badge.
An employment tribunal had decided that in all the cir-
cumstances the dismissal was fair because it was within
an employer’s discretion to instruct an employee not to
wear a particular badge or symbol which could cause
offence to customers and fellow employees. Miss B
appealed to the Employment Appeal Tribunal which dis-
missed her appeal and said that her dismissal was fair.
The court said that there was no question of Miss B
having been dismissed because she was a lesbian or
because of anything to do with her private life or private
behaviour. Such a case would be entirely different and
raise different questions. This was only a case where she
had been dismissed because of her conduct at work.
That, the court said, must be clearly understood.Comment.
(i)The decision does not mean that an employer by a
foolish or unreasonable judgment of what could be
expected to be offensive could impose some unreason-
able restriction on an employee. However, the decision
does mean that a reasonable employer, who is, after all,
ultimately responsible for the interests of the business, is
allowed to decide what, upon reflection or mature con-
sideration, could be offensive to customers and fellow
employees, and he need not wait to see whether the
business would in fact be damaged before he takes
steps in the matter.
(ii)In KowalskivThe Berkeley Hotel(1985) the EAT
decided that the dismissal of a pastrycook for fighting at
work was fair though it was the first time he had done
it. Also, on the issue of conduct, the EAT decided in
MarshallvIndustrial Systems and Control Ltd(1992)
that a company acted reasonably in dismissing its man-
aging director after discovering that along with another
manager he was planning to set up a business compet-
ing with the company and to take on the business of its
best customer and that active steps had been taken to
achieve this. It should be noted that an employee does
not breach the duty of loyalty merely by forming an
intention to compete at some future date (Laughtonv
Bapp Industrial Supplies Ltd(1986)). As regards smok-
ing at work, it was decided in Dryden vGreater GlasgowHealth Board(1992) that employees have no implied
contractual right to smoke at work. If, as in Ms Dryden’s
case, the employee leaves because he or she is not
allowed to smoke, there is no constructive dismissal.
The employer in this case had offered counselling but
without success.