Mr Kerry Wilson v Grant & Sons Distillers Limited — 2021

Mr Kerry Wilson worked as a Spirit Supply Operative at Girvan Distillery from 23 May 1988 until 19 December 2019, when he was summarily dismissed after an allegation that he had urinated on a cask in the C-line cask storage area on 20 November 2019. The tribunal summarised the internal process as an investigation by Mr Scott Baird, a disciplinary hearing before Mr Brian Bartlett, and an appeal to Mr Stuart Watts. It recorded the claimant's denials, his explanation that he had taken a different route back from lunch and seen a bird, and the respondents' reliance on witness evidence, photographs, laboratory testing, and their internal interviews.

On the unfair dismissal claim, the tribunal applied section 98 ERA 1996, the Burchell test, and the band of reasonable responses approach. It found that the respondents genuinely believed the claimant had committed misconduct, that the belief was based on reasonable grounds, and that they had carried out as much investigation as was reasonable in the circumstances. The tribunal also found that the disciplinary and appeal stages were fair when viewed as a whole, and that any earlier shortcomings were cured by the appeal process. It held that the claimant's conduct amounted to gross misconduct and dismissed the unfair dismissal claim.

On the wrongful dismissal claim, the tribunal distinguished the common law test from the unfair dismissal analysis and held that a reasonable belief was not enough. The respondents had to prove that the claimant actually urinated on the cask, and the tribunal held that they had not done so on the balance of probabilities. In particular, it noted that Mr McNair and Mr Maxwell were not led as witnesses, so the respondents had not established a repudiatory breach entitling them to dismiss summarily without notice.

The tribunal awarded damages for breach of contract in lieu of notice. It found that the claimant was entitled to the statutory minimum notice period of 12 weeks under section 86 ERA 1996 and ordered the respondents to pay £11,264.76. No separate award was made on the unfair dismissal claim because that claim failed.