Wellingborough Wilko employee who sold knife to 16-year-old was not dismissed unfairly, rules court

A sales assistant who sold a knife to a child in Wellingborough’s Wilko store was sacked after 15 years of service, an employment tribunal has heard.

The employee, Susan McMillan, started working at Wilko in 2006 and had had annual training on retail law, including on the store’s Challenge 25 policy with regard to the sale of knives.

Under the policy, workers must ask anyone who they believe looks to be under 25 to provide ID if they are selling them restricted products. There is also an automatic till prompt for all sales of such items. A till operator must click the option that says ‘customer clearly over 25’.

An employment tribunal sitting over video link heard that Ms McMillan was working at the Wellingborough store in April last year and, ten minutes before her shift was due to end, a customer purchased a knife.

The sale was part of a police operation and the customer was just 16.

The following day Ms McMillan was called into a hearing at work to investigate what happened and admitted suffering a ‘lapse in concentration,’ adding that she thought the girl was over 25. A colleague said that she had seen the girl and thought that she looked ‘clearly underage’. Ms McMillan was suspended.

Three days later, on May 4, she attended a formal disciplinary hearing with a store manager from Corby, where she told mangers ‘she looked much older than she was’, ‘it was late at night’, she had ‘a lot going on at home’.

The manager said she considered a final written warning in the light of the claimant’s length of service and clean disciplinary record but considered ‘she should have known better’ as a long standing and fully trained team member.

Ms McMillan was sacked. An appeal failed, so she took Wilko to an employment tribunal.

At the tribunal, the court heard evidence from the claimant’s counsel who said this was a ‘one-off error of judgment’ and the appropriate response was re-training in line with the management guidelines.

They also claimed the investigation and disciplinary procedure was flawed because Ms McMillan did not receive the invitation to the first disciplinary hearing in writing and did not understand that dismissal was a possible sanction or that she had the right to be accompanied.

Counsel said there was no attempt to look at the CCTV evidence.

The court also heard how Wilko did not apply the management guidelines consistently as other employees who had failed to follow the Challenge 25 had not been dismissed.

In his judgement, Employment Judge Matthews said: “The claimant was given ample opportunity to put forward her case as to why she believed the customer to be over 25 but she was unconvincing in her evidence at the various stages of the investigation and disciplinary. At the investigation she said that the customer looked 26. This is a very specific age and it is not ‘clearly’ over 25.

"She reiterated that the customer looked over 25 at the disciplinary hearings. She did not offer any details about why she thought that was the case. A reasonable employer was entitled to disbelieve her.”

He found that Wiko’s decision to sack Ms McMillan was reasonable and she was not unfairly dismissed.