A customer service advisor was unfairly and wrongfully 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 company canteen, a tribunal has ruled.
The remote tribunal ruled that Mr Steven Smith, who had worked for the company for two years, was “obviously upset” by how he had been treated in the canteen while he was completing a 12-hour shift.
It found that the investigation’s focus on only two witness statements was unreasonable, and that significant weight was placed on evidence of his presumed anger and red face, while overlooking Smith’s health condition which can affect his complexion. As a result, the investigation and disciplinary placed considerable weight on confirming Smith’s guilt.
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All of Smith’s claims for unfair and wrongful dismissal were upheld.
Smith was employed at the Airdrie office of digital business services provider Teleperformance Limited as a customer services advisor from 1 November 2016 until his dismissal on 7 October 2019 and was entitled to two weeks’ notice in the event of a termination. The tribunal also heard that he had respiratory issues which meant that “on occasion” his face could go red.
The tribunal heard that on 27 September 2019, Smith was involved in an “incident” in the office canteen, when he asked for “chicken nuggets, chips and cheese” and was given three nuggets by the canteen assistant. Smith claimed that he said he did not want the food and “slid the box back” because other customers had been receiving four or five nuggets.
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The incident was brought to the attention of a team manager, Ms Marshall, by a security guard. Marshall told the tribunal that there was concern Smith had acted “aggressively with potential violence” which could amount to gross misconduct.
After speaking with her managers, Marshall decided Smith should be suspended on full pay pending an investigation, and HR informed him of the decision the same day. On 30 September, Smith attended an investigation meeting with Marshall and HR, in which he said he “slid the box back”, adding that the canteen assistant should have “declared” there would only be three nuggets in the meal. The tribunal heard that Marshall, who had handled several investigations over her career, did not ask all the prepared questions during this meeting.
As part of the investigation Marshall interviewed the two canteen assistants, who were employed by a third party, and they claimed that Smith was noticeably angry and “forcefully pushed the box back”. They claimed he said “you can keep it, I’m not a f***ing kid”, adding that his face was “bright red” and that it felt as if “he would have kicked off if either of us opened our mouths”. She also offered Smith three more nuggets for 99p but he refused.
A second investigation meeting was held on 2 October with Marshall and HR. When asked why the canteen assistants would feel threatened by his behaviour, Smith said he “just wanted to get food and go back to my job” and added that he takes medication that requires him to eat.
He also denied “storming off”, as one canteen assistant alleged, but that he went to report the incident to a manager because he was “dissatisfied”. He also explained that his health condition could make his face go red; that he felt “antagonised”; and that he had worked a lengthy shift.
Smith maintained that he believed he conducted himself in the correct manner, and handed Marshall a grievance letter as he felt he was being “discriminated against and victimised”. Smith also queried why the manager he spoke to had not escalated the issue and said he believed the witness 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.
Marshall adjourned the meeting and said his grievance would be dealt with after the investigation, but advised it may proceed to a disciplinary hearing.
The tribunal heard that other employees were present when the incident took place but Marshall took no steps to identify who was present, either by speaking to those involved or by checking the swipe card logs.
The tribunal said that given the time Marshall considered it would take to investigate the swipe card system, she decided not to investigate further, 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”.
She also told Marshall that she didn’t ask all the prepared questions during the initial investigatory meeting because she felt Smith could “kick off at any point”, but none of this was communicated to Smith. The tribunal said that Stewart took Marshall’s comments “into account in his assessment of the matter”.
However, 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.
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 with Stewart and HR, Smith maintained he had not acted violently or aggressively towards the canteen assistant.
When Stewart asked why the canteen assistant would have said his conduct was aggressive and “made her stomach churn”. Smith pleaded ignorance and said “for all I know she could have diarrhoea” and said he was “forcefully” being made to accept something that he did not do.
Stewart made the decision to dismiss Smith for “acting violently” and 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.
He added that he felt it was a “waste of time” to attend if he would be dismissed over three chicken nuggets, and that he was “not prepared to be humiliated”. Smith’s appeal was not upheld.
The tribunal also noted that on 27 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”.
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 or rude, adding that “for some the comment may have been positive depending upon their food preferences. For others it may have been negative.”
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.
Joanne Frew, head of employment at DWF, said the case serves as a “stark reminder for all employers that a thorough investigation is key”, and that handling disciplinaries can be a stressful time for all involved.
“It is advisable for employers to set out a clear investigation plan at the start to avoid issues further down the line and to minimise risk,” said Frew.
Teleperformance Limited has been contacted for comment. Smith could not be reached.