Employee unfairly dismissed after being sacked for joking with colleague that he had a knife (Mr M Z Kabir v John Lewis PLC – 3219926-2020)
In the case of Mr M Z Kabir v John Lewis PLC Mr Kibir 3219926-2020 the Claimant was successful with his Employment Tribunal claims for unfair dismissal and wrongful dismissal after being fired for sending inappropriate text messages to another member of staff referring to a knife.
The facts in Mr M Z Kabir v John Lewis plc
Mr Kabir began his employment with John Lewis plc in October 2002 as a supermarket assistant and worked in various branches over the years he was employed. Employees were also known as ‘partners’. He worked in the ready meals, meat and fish section of the store. His tasks sometimes included doing daily reductions on items of food that were close to their sell by dates as instructed by his managers.
On 9 July 2020, Mr Kabir was called to the office of Mr Gladstein, the deputy branch manager, to discuss allegations he had not followed the company policy of disposing of a product due to expire on 5 July 2020, instead leaving it for another member of staff to action. Mr Kabir denied doing this but CCTV evidence appeared to show he had done this. Although Mr Gladstein recommended the case for further action no further action was taken.
On Monday 20 July 2020, Mr Kabir sent a text message to Matthew Ford, the assistant team manager at around 4.02pm. The text messages went:-
- 02: Mr Kabir: Hi Matt how are you
- 21: Mr Ford: Hi, kabir you ok
- 32: Mr Kabir: I am ok what about you
- 05: Mr Ford: yh fine thanks can I help you with something
- 07: Mr Kabir: I found a knife
- 13: Mr Kabir: I don’t know what to do
- 13: Mr Ford: What?
- 13: Mr Kabir: 4 emojis (smiley face with heart eyes) Are you scared
- 14: Mr Ford: I have no idea what you’re on about
- 16: Mr Kabir what time you finish today
- 16: Mr Ford: I’m finished already what are you on about Kabir
- 16: Mr Kabir: when will I see you next
- 16: Mr Ford: why (the text conversation ended there)
Mr Kabir was at the home at the time making dinner for his children and the comments regarding holding a knife was intended to be light hearted and not threatening to Mr Ford. He later attempted to contact Mr Ford via mobile phone as he was concerned he had misunderstand what he had said, but received no reply.
On 21 July 2020, Mr Ford spoke to Donna Lakey, the deputy branch manager, and Robert Pender, the branch manager, about the texts. He informed them he was scared about the content of the texts and also expressed his concerns about Mr Kabir possibly bringing a knife into work, and wanted advice on what to do. After seeking advice from the Profit Protection section, they advised contacting the police via their website and making a report if any staff were concerned.
When Mr Kabir attended work for his shift at 7am he was confronted by a police officer who searched him for a knife but found none in his possession. He tod the police the texts were a joke. The police accepted no malice was intended and he was not cautioned.
Mr Kabir apologised to Mr Ford for the texts which he appeared to accept.
On 23 July 2020, Ms Lakey assigned to conduct an investigation into the matter, met with Mr Kabir. During the investigation Mr Kabir explained that his reference to having found a knife, was in relation to using it for slicing food for a meal he was preparing for his children. He explained his text in response to Mr Ford’s text `‘what’ with smiling emojis was just meant as a joke. Mr Kabir had come to realise afterwards that this had made Mr Ford scared and regretted sending the texts. At the investigation meeting Mr Kabir was visibly upset and felt he was going to vomit and needed to leave the room. It was accepted he had a good employment record with no previous misconduct issues.
On 28 July 2020, a disciplinary meeting was held which Mr Kabir attended unaccompanied. He was advised of his obligation to observe expected behaviours as a Partner as set out in the company handbook. Mr Kabir was very apologetic and stated in the meeting that he had never had any issues in his 17 years of being employed at John Lewis which he hope would be taken into account in any decision taken.
On 29 July 2020, Mr Gladstein wrote to MR Kabir confirming his summary dismissal for serious misconduct, namely, ‘serious inappropriate behaviour, capable of causing a Partner distress’.
On 4 August 2020, Mr Kabir submitted an appeal stating his reasons. In outline reiterating that he had not realised his texts would cause Mr Ford distress, and were only meant as a joke with no harm intended,he had attempted to apologise a number of times, he had 17 years service with no incidents of violence or threatening behaviour. He acknowledged it was a rather weird conversation in hindsight, but not meant to be threatening in any way.
On 3 September 2020, an appeal meeting was held. In addition to his stated reasons for appeal, Mr Kabir raised some additional point, including that he had not actually been charged by the police for any offence, and in his Bengali culture the comments made in the text were commonly used in humorous banter.
On 18 September 2020, the appeals manager, Melanie Ridley, wrote to Mr Kabir uphold the decision to dismiss him and reject his appeal.
The decision of the Employment Tribunal
The Employment Tribunal found in favour of Mr Kibir. They concluded that the act of dismissing him was not within the band of reasonable responses open to his employer. There was nothing in his past conduct to suggest he was likely to use threatening behaviour to other employees/partners. They found his conduct to be thoughtless but intending no harm. The employer did not take into account all of the surrounding circumstances, such as his long service, attempts to apologies, lack of malice. A more appropriate sanction would have been a final written warning.
Mr Kibir was awarded a total of £47,192.90 made up of the following:-
- £8,957.70 basic award;
- £31,069.40 compensatory award;
- £7,165.80 breach of contract
Our lawyer’s views on the case
Steve Norton, a lawyer at Redmans, commented on the case: “This was an example of a spur of the moment comment meant as harmless banter being misconstrued. The employee in this case was clearly thoughtless and nonsensical as the tribunal stated, but not meant in a threatening or sinister way and the employer’s actions overstepped the line in moving to dismiss, without looking at all the circumstances and a fairer sanction”.
The decision of the Employment Tribunal in Mr M Z Kabir v John Lewis plc: 3219926/2020 can be found here.