I know a driver (not me), who is up for disciplinary for delivering to a test purchaser over 18 for not asking for i.d. however the driver did assess this purchaser at the door using think 25 and in the drivers opinion thought this person was within the 25 age group. Surely if the subjective and personal judgement of the driver at the time was that the purchaser didnt look underage then 1) no id would have been requested, and 2) in the instance of 1 then no disciplinary should be allowed.
Also because these age policies in tesco are asking people to "form a subjective and personal view" as to someones age then this is a matter of capability not conduct and therefore not a disciplinary matter, tesco cant even train for this as every delivery can be met by a different face. Drivers are asked to form a view at the door and this driver did. How can disciplinary be a result of having a different opinion from the organisers of the test purchase
Indeed. Thought crime in action.
Essentially it comes down to did the driver follow the think 25 policy, and congratulations it's a nightmare, you're entirely correct in that it's a subjective issue,as long as the driver followed his training there is no misconduct, if they believe his technique is flawed then training needs to be examined.
It is a conduct issue, but should not move beyond the investigation stage.
Once the driver makes it clear he followed the think 25 policy to the best of his training it becomes about inadequate training rather than conduct.
Good luck with a Tesco manager understanding this, especially a delivery manager.
If they issue a warning then appeal and if it isn't overturned, use ACAS and the tribunal.
Add to this, in store, other people will see the person you're serving, delivering to customers at their door (even a test purchaser) means nobody else will have a view on how old this person probably is. It's also his word against the test purchasers, they can't discipline based on that.
these tesco test purchasers.... would they not have a witness with them at the door or at least in earshot.
Quote from: NightAndDay on 25-06-21, 11:22AM
Add to this, in store, other people will see the person you're serving, delivering to customers at their door (even a test purchaser) means nobody else will have a view on how old this person probably is. It's also his word against the test purchasers, they can't discipline based on that.
Quote from: horatiocain on 25-06-21, 10:01AM
Essentially it comes down to did the driver follow the think 25 policy, and congratulations it's a nightmare, you're entirely correct in that it's a subjective issue,as long as the driver followed his training there is no misconduct, if they believe his technique is flawed then training needs to be examined.
It is a conduct issue, but should not move beyond the investigation stage.
Once the driver makes it clear he followed the think 25 policy to the best of his training it becomes about inadequate training rather than conduct.
Good luck with a Tesco manager understanding this, especially a delivery manager.
If they issue a warning then appeal and if it isn't overturned, use ACAS and the tribunal.
On the contrary i see it as a capability issue hence the companies responsibility to provide more training that makes this task easier, conduct is deliberate and black and white, capability comes down to in most areas of employment to training, and if inadequate which it clearly is because the driver found it outwith there ability to make the right decision about age and they clearly need help with that (training again).
Its rather wrong that the people that set up the test purchases have the benefit of hindsight to know the persons age before the event.
This driver had an opinion on age, nothing more, he just needs taught better or rather more accurate ways to form this opinion, good luck to tesco providing this as they couldnt do better themselves.
It cannot be a capability question, because the argument would then be is the person capable of following the think 25 policy, if the answer is no then its a different situation.
If the answer is yes the capability question has been answered.
If their not correctly applying the think 25 policy then it's not a matter of disciplinary action but rather one of training, their training is clearly inadequate.
If they are fully aware then proceeded to ignore the policy its a matter of conduct.
You have 3 possible avenues;
1. Capability, the colleague cannot follow the policy, in which case they cannot continue in their role.
2 training, the colleague needs better training in the think 25 policy and as such no disciplinary action is needed, or warranted.
3. Conduct, the colleague is choosing not to follow the policy, in which case they've committed misconduct.
In this case the driver followed the policy, so both 1 and 3 do not apply, they are fully capable of following the policy and are not choosing to ignore it.
So the problem is that the driver in question believed the person to be over 25 and here is the legal bit, if they actually believe that then it is a reasonable expectation and the test purchase needs validation.
If just 10% of people would believe someone to be over 25 then that meets the minimum legal threshold, because the law understands that its a subjective opinion, not based in any universal rule, when you ask 100 people to estimate an age, on average on 20% are actually right.
So knowing this we can then state that the problem is the drivers subjective opinion, hence more training needs be given to ensure the driver I following their training, which also shows Tesco are following their obligation.
The whole fines rubbish they like to threaten people with is a heavy handed threat, and little more.
If they are trained, experienced and have asked for I.d. before then they'll get a warning. Maybe a final.
horatiocain The fines would be for a failed external test purchase and are no threat, councils and police can and do give them out, usually its a fixed penalty notice and a fine of about £80, if your unlucky enough not to get off as it were with a fixed penalty or a repeat offender it usually ends up in court and the fine can be much bigger. Alongside this you will also face action from Tesco for breaching the think 25 policy.
The capability question isnt whether they are capable of understanding or exercising the think 25 policy, its about are they capable of deciding if somone is 25 or over in order to then exercise the rest of the process of asking for i.d.. The fact that they cant is 100% a training issue, in my view im sorry to say tesco training needs to find ways to make it a more accurate process and pass knowledge on to their drivers, instead they have decided to put the onus on the driver to form this opinion again totally subjectively and then arbitrarily decide if the driver guesses wrong threaten them with disciplinary. Hardly a fair policy not upholding the law of duty of care
Quote from: horatiocain on 26-06-21, 01:25AM
It cannot be a capability question, because the argument would then be is the person capable of following the think 25 policy, if the answer is no then its a different situation.
If the answer is yes the capability question has been answered.
If their not correctly applying the think 25 policy then it's not a matter of disciplinary action but rather one of training, their training is clearly inadequate.
If they are fully aware then proceeded to ignore the policy its a matter of conduct.
You have 3 possible avenues;
1. Capability, the colleague cannot follow the policy, in which case they cannot continue in their role.
2 training, the colleague needs better training in the think 25 policy and as such no disciplinary action is needed, or warranted.
3. Conduct, the colleague is choosing not to follow the policy, in which case they've committed misconduct.
In this case the driver followed the policy, so both 1 and 3 do not apply, they are fully capable of following the policy and are not choosing to ignore it.
So the problem is that the driver in question believed the person to be over 25 and here is the legal bit, if they actually believe that then it is a reasonable expectation and the test purchase needs validation.
If just 10% of people would believe someone to be over 25 then that meets the minimum legal threshold, because the law understands that its a subjective opinion, not based in any universal rule, when you ask 100 people to estimate an age, on average on 20% are actually right.
So knowing this we can then state that the problem is the drivers subjective opinion, hence more training needs be given to ensure the driver I following their training, which also shows Tesco are following their obligation.
The whole fines rubbish they like to threaten people with is a heavy handed threat, and little more.
Have you any links to this legal bit youve referred to, thanks in advance
Personally I'd just take a zero tolerance approach and ask every single customer for ID.
Tesco seem to be doing lots of test purchases recently. I've got to the point that if they don't look like they're about 35 , I ask for ID . I do night in pfs alone so it's just the easiest way and yes I get lots of back chat but that's life .
RE; above comment about fines , it is my belief that fines can only be issued when they use test purchasers under the age of 18 , test purchasers between the age of 18 & 25 , it's just a training issue .
The law requires reasonable steps, and reasonable belief.
Firstly reasonable steps means following the think 25 policy, which is perfectly fine as policies go.
The problem is reasonable belief and ignore what Tesco managers state it means.
Reasonable has a legal definition, it means what would an average person believe given the same facts, sometimes called the man on the Clapham omnibus.
In other words think what the average person would believe, that's reasonable.
As to big fines, they require prosecution, which falls if the seller is selling the alcohol sincerely believes the purchaser is over 18 and takes all reasonable steps.
If they can show they followed the think 25 policy then no crime has been committed, as it is not a crime of strict liability.
You can challenge a fixed penalty notice and then the afore mentioned applies.
Test purchases have always had this flaw and as long as a company can show they have a robust think 25 policy they have a defence.
Obviously if the person is clearly under 18 then things change but the OP said the driver thought the person was over 25, so either more training is needed or they used a very convincing 24 year old.
These rules are known by every pub landlord in the country, its a part of their exam
That's the point they do pick people who look older than they are ! My brother was a police man and put my son forward as a test purchaser when he was sixteen as he looked older . Theres no point in doing the test purchasers if they don't look older than the age bracket it's to push for people to ask for ID .
I think with females its especially hard to tell with false tan , HD brows , false nails and contouring cosmetics, sometimes I can't work out if they're 14vor 40 .
Quote from: Welshie on 27-06-21, 06:53PM
Tesco seem to be doing lots of test purchases recently. I've got to the point that if they don't look like they're about 35 , I ask for ID . I do night in pfs alone so it's just the easiest way and yes I get lots of back chat but that's life .
RE; above comment about fines , it is my belief that fines can only be issued when they use test purchasers under the age of 18 , test purchasers between the age of 18 & 25 , it's just a training issue .
It is on the policy that each dotcom will have a test purchase twice a year. If a fail another will be done within a month.
I'm representing a colleague who failed. They give no information about the alleged offence except the date. He had done approximately 300 deliveries since. Total joke.
Policy is on colleague help regarding it. Yup twice a year, don't give details as he'll no doubt deliver there again.
Sorry but the person who got pulled up on this was given the details of the address and the age of the test purchaser.
Read the policy. It very clearly says on a a couple of occasions that the CDD cannot be told the name or address of the customer for GDPR reasons. If they told the guy your rep ping they have broken policy and it should be reported as a data breach to head office.
There is no GDPR issue for test purchases by pretend customers being paid to pretend they are something they are not.
You're preaching to the converted. I totally agree, however my colleague got a final with no evidence of the person he delivered to. The policy is clear that the CDD can not be given the information on the customer. I have no idea why, only guess is they would be a one time deal for the company. by the way the company we use is called safe legal.
Appeal going in, so hopefully we can get some form of justice.
[mod]Please do not quote immediately prior post(s).[/mod]
Surely for disciplinary or punishment of any kind the accused has right to defence and therefore the evidence presented
From the disciplinary policy itself
"You will be invited to a hearing in writing, and should
receive this letter at least 24 hours before the disciplinary
hearing is due to take place. This is to give you time to
prepare.
The invite will:-
provide you with a date, time and location for the
hearing;
tell you who will be holding the disciplinary hearing;
explain what allegations will be discussed;
contain a copy of any paperwork/evidence relating to
the disciplinary (sometimes this is sent separately in
advance of the hearing); and
inform you of your right to be accompanied (either by
a Trade Union Representative or a colleague. If you
are under 18 or disabled, you can also be
accompanied by a parent or guardian if you wish to
be)."
So if the customer involved and the address are not given to the accused then has the company not just breached its own policy as surely in this case that information would be evidence.
The personal details of the customer cannot be given to the employee.
This will include the name and address of the test customer.
Apart from it breaking numerous laws, there has been in the past at various companies where disgruntled employees have got/been given customers details and then launched various campaigns against said customer, up to and including attacking said customer in there own home.
Now I'm not saying that employee will do that if given the customers details, however there are employees in Tesco who would!
Now imagine the uproar on here if a customer complained about an employee and the customer demanded said employees home address and Tesco gave those details out!
Anything could happen to that employee, yet people are saying on here the customers personal details should be given out.
But without knowing who you have delivered to without apparently following think 25 how can the person making the delivery defend themselves, I know in work the threshold for taking action is less than in law but here we basically have a third party company serve legal saying this Tesco worker did not follow think 25. Without being able to see any evidence against them and therefore being able to fully present there own version of events someone has now got a final written, an employment tribunal or acas would have a field day here
Which id be very surprised if someone doesnt take this sort of stuff up with acas or an e.t.
It's a test purchase for a reason.
Colleagues should be using their common sense when it comes to this and if any doubts, always ask.
As the customer /test purchaser was over 18, no criminal offence has been committed however, it's a breach of internal policy. A dismissal sanction would be too severe, unless this has happened previously. I would say First written warning.
Take USDAW if a member - you pay them for this service.
To your defence you can say that you were ascertain that the customer was over 18 and go into detail why..
good luck!
The point is that if the colleague has no doubts about their assessed age of the customer, what then?
If the drivers assessment led to conclusion that the purchaser wasn't under 25 then I'm sorry its still a case of policy has been followed and there was no need to request id. Its always the case that if that's the drivers opinion then surely up to Tesco to then give the reasons why they didn't look to be 25 (but of course they could make this up and form a biased opinion as they will know the persons age as they arranged the test). Only other alternative I see is to provide more training to help opinions become more accurate. This in no way should lead to any disciplinary.
Agree with the above. If the driver held a reasonable belief that the customer was over 25 and can provide sound reasons why they thought so, I don't feel disciplinary action would be appropriate. Some people do genuinely look older than they actually are.
If the case ever got to a Employment Court, Tesco would need to show that such a belief was unreasonable and that you have been trained to be able to spot the difference between a 26 year old and when someone is for example 23. The same 4 photos on the last 5 Legal E-Learning training courses are unlikely to cut it.
People still seem to be missing an important point here, where is the evidence that someone has not followed think 25, is there any cctv or witness proof, unlikely as its a home delivery test purchase, what customer was it, cant be told due to GDPR, how can we be sure that the events as described by the test purchaser are accurate, we have one persons word being used to put someone on a final written, when the person who has been issued the final cant see any of the proof against them, challenge the person making the accusation or even know when the offence happened to put forward a defence.
There is so much wrong with this that it is actually hard to know where to start, to put it another way if you walked into store tomorrow morning and were invited to a meeting, in that meeting you were told, last week you upset a customer, we will not tell you the customers details, what the customer says you did, or when exactly it happened, we are just taking the customers word and taking it to a misconduct meeting would you accept this, the only difference between my example and the failed test purchase is the type of offence the staff member is accused off.
The 'Think 25' training is sketchy at best!
Probably deliberately sketchy to catch drivers out and line them up for disciplinaries
I wouldn't be surprised; when we have the Legal training every year you just know it's going to be the same four faces you need to guess the ages of ???
Is there actually any mitigating circumstances under which this would not lead to a disciplinary ? If there isn't then surely that means disciplinary is always the default action which goes against policy as Tesco's mind isn't meant to be decided before any hearings/investigations, it's meant to come after the hearing