Dismissal on the spot for a minor offence. Is that allowed?

Can you dismiss your employee with immediate effect after a minor offence, such as the theft of a (very) low-value product? Yes, you can! However, a recently published decision shows it does not go without a risk!

Can you dismiss your employee with immediate effect after the theft of a (very) low-value product? Yes, you can! However, a recent ruling by the Arnhem-Leeuwarden Court of Appeal shows that this is not without risk.

Fruit box

Every Monday, an employer placed a box of fruit in the canteen to promote the health of its staff. The email announcing this initiative stated: “Grab your favourite piece of fruit every morning.” An employee was caught at the end of the working day giving a bunch of bananas to a colleague and putting a few pieces of fruit in his bag. Shortly afterwards, he was dismissed on the spot. The employer had a zero-tolerance policy on theft and considered that the employee had breached this policy.

The Arnhem-Leeuwarden Court ruled against the employer. Admittedly, the employee should have realised that taking so much fruit was uncollegial, as the fruit basket was intended for all colleagues. However, summary dismissal was too severe a measure in this case: the fruit was free, and nowhere was it stated that everyone was only allowed to take one piece per day and had to eat it immediately. Moreover, the employee had an explanation for his behaviour: he was unable to eat during working hours during Ramadan and therefore wanted to take the fruit home. He also usually worked at weekends, when the fruit box filled on Mondays was empty or nearly empty.

The summary dismissal is therefore unjustified, and the employee is entitled to compensation for the failure to observe the notice period, the transition payment and fair compensation of EUR 7,500.

Minor offence

Minor offences, where an employee steals a (very) low-value product with the result of dismissal with immediate effect, can regularly be found in case law. For instance, judges have previously ruled on summary dismissal following the taking of a plastic shopping bag, a box of damaged pastry and empty deposit cans. They also had to determine whether failing to pay for a bottle of wine at a self-scan supermarket and taking leftover food and drink from an airplane trolley were sufficient grounds for summary dismissal.

If it concerns (very) low value products, dismissal with immediate effect sometimes seems too severe a measure. On the other hand, you, as an employer, want to be able to trust your employees. Stealing is stealing, and you want to prevent that at all times.

Three tips

As can be seen from the ruling of the Arnhem-Leeuwarden Court of Appeal, the judge does not always agree with the employer that dismissal with immediate effect is justified because of a minor offence. In that case, you will have to take the employee back if he still wants to go back and you will have to continue to pay wages for the period the employee did not work. If the employee resigns himself to the dismissal, you will often have to pay fair compensation in addition to the transition compensation.

How can you increase the likelihood that the court will agree with you? Here are three tips:

1. Ensure you have a clear zero-tolerance policy. It must be crystal clear to the employee what the policy entails, why it is necessary, and that breaching it will lead to dismissal on the spot.
2. Ensure that this policy is also made known to employees. For example, set it out in the staff handbook or code of conduct. Also, repeatedly bring the policy to your employees’ attention, for example through training sessions or internal communications. A one-off signature to accept the staff handbook is not sufficient.
3. Enforce the zero-tolerance policy consistently. In other words, apply it without exceptions.

Bear in mind, too, that the court will always weigh the employer’s interests against the consequences of the dismissal for the employee. The employee’s personal circumstances play a role in this, such as the length of service, the employee’s performance, their financial situation, their position in the labour market and their age. This assessment may ultimately mean that the summary dismissal does not stand up in court.

Employment and dismissal lawyer

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