What Happened
Waitrose
Walker Smith had worked at the Clapham Junction branch for 17 years. He stopped a shoplifter taking a bag of Easter eggs, there was a brief struggle, and the thief ran off. Two days later he was dismissed. He said he had watched theft in that store "every hour of every day for the last five years" and had been told not to step in. Waitrose stood by the decision, pointing to the "serious danger to life" in tackling thieves and confirming it had followed its process, appeal included. The chairman of Iceland then offered him a job in public.
Morrisons
Sean Egan, 46, had been with the chain since he was 17. He was walking a shoplifter out of the store when the man turned aggressive and spat at him. Egan put an arm out to stop him reaching into a bag. He was dismissed for breaching the company''s "deter and not detain" policy, even though he had reported the theft to the police. The shoplifter was later convicted.
Why the Policy Is the Easy Part
Start with what these employers got right, because it matters. No-confrontation and deter-and-not-detain rules exist for good reason. Tackling a shoplifter carries a genuine risk of violence, and if a member of staff gets hurt, the responsibility sits with the business. A clear policy telling people not to intervene is sensible, and protects staff as much as anyone. Breaking it is, in principle, misconduct.
So the employer will probably win the first argument at a tribunal. There was a policy, the employee broke it, and that is a potentially fair reason to act. The case is not decided there, though. It turns on the second question, and that is the one employers tend to underestimate.
The Question That Decides These Cases: Was Dismissal Proportionate?
Under the Employment Rights Act 1996, a dismissal is only fair if it sits within the range of reasonable responses, meaning the kind of decision a reasonable employer might have reached. The tribunal does not just ask whether the rule was broken. It asks whether dismissal, rather than a warning or a final warning, was a fair sanction for what actually happened.
That is where mitigation comes in, and where both these dismissals look shaky. The law expects an employer to genuinely weigh mitigation before deciding. Look at what sits on the scales:
- Length of service and record. Seventeen years and twenty-nine years, both apparently spotless. That is significant mitigation. Letting a near-30-year employee go treats them exactly as you would a new starter who did the same thing.
- What the person actually did. An instinctive reaction, in one case while being spat at. That is not planned misconduct, and tribunals draw a clear line between a calculated breach and a human response under pressure.
- The context. Years of being told to watch theft and do nothing, then one moment of reaction. It does not excuse the breach, but it speaks directly to whether dismissal was proportionate.
- What happened next. Nobody was seriously hurt, and in the Morrisons case the thief was convicted. The danger the policy is there to prevent did not actually materialise.
Running a clean process does not settle it either. You can investigate properly, hold the hearing, offer the appeal, follow the Acas Code to the letter, and still be found to have dismissed unfairly if the sanction itself was too severe for what happened. A good process protects against procedural unfairness. It does not rescue a decision that was simply heavier than the conduct deserved.
What This Means for Your Business
Almost every retailer, and plenty of North West employers outside retail, has a no-confrontation or lone-worker policy in the handbook. These cases are a test of how that policy behaves when something actually happens, and of whether it treats a loyal employee fairly when it does. It is also worth remembering that from January 2027 the unfair dismissal qualifying period drops to six months under ERA 2025, so fair, proportionate decisions matter for a wider group of your people than before.
- 1
Keep the policy, but leave room for judgement
The rule can be firm. The disciplinary outcome has to be able to flex for service, record, provocation and intent. A policy that demands dismissal for any breach, with no discretion, produces outcomes that are neither fair nor defensible.
- 2
Separate the breach from the sanction
Decide first whether the rule was broken. Then, as a separate question, decide whether dismissal is a fair response given everything you know about this person and this incident.
- 3
Put the mitigation on paper
If you do dismiss, your notes should show you weighed the length of service, the record and the context, and why you still reached that decision. Saying nothing about mitigation reads as a closed mind.
- 4
Be consistent
If someone else got a warning for something similar, expect to be asked why this person was dismissed. Consistency is fairness, and inconsistency is some of the strongest evidence of unfairness there is.
- 5
Take advice before you act, not after
A conversation before you dismiss a long-serving employee is worth far more than trying to put things right once a decision has been made.
So, Can You?
You can dismiss someone for breaching a no-confrontation policy. Whether you should, and whether a tribunal will agree it was fair, comes down to proportionality and mitigation, not to whether the rule was broken. Waitrose and Morrisons both followed their handbooks. The open question in both is whether dismissing employees with 17 and 29 years'' service, for instinctive reactions under provocation, was a response a reasonable employer would have reached. Plenty of tribunals would say it was not, and plenty of customers clearly felt the same.
DaisyHR''s CIPD-qualified consultants advise North West employers on decisions exactly like these — before they are made, when it still makes a difference. We help you read the proportionality risk, weigh the mitigation properly and reach a decision that is fair to the employee and sound for the business. If you are weighing a difficult conduct case, talk to us before you act.