ETZ 4(WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case no 4104807/2019 Held at Edinburgh on and August 2019 Employment Judge: W A Meiklejohn Mr Paolo Alexandre Mendes v Ms E Cozzeia – Interpreter Farne Salmon & Trout Limited — 2019

Mr Paolo Alexandre Mendes was employed by Farne Salmon & Trout Ltd from 24 January 2005 until his dismissal on 22 January 2019. The respondent alleged that on 11 January 2019 he was seen in the maturation chill area taking a piece of fish from a trolley and eating it as he walked back to the trimming hall. The claimant denied eating the fish and said he had gone to the area to see a colleague or to check what fish was available. He was assisted by an interpreter at most meetings, but the initial suspension meeting on 11 January 2019 took place without one.

The tribunal preferred the evidence of Mr Szymanski, the quality assurance employee who said he observed the claimant tearing off and eating the fish, over the claimant's denial. It relied on the prompt report to Mr Pearson, the contemporaneous email sent to HR later that day, and the photograph taken by Mr Pearson showing a piece missing from the fish with a colour contrast consistent with the tear having occurred after smoking. The tribunal accepted that the claimant gave inconsistent explanations for being in the maturation chill, although it noted that some of this may have been affected by translation issues.

Applying British Home Stores Ltd v Burchell, the tribunal held that the respondent genuinely believed the claimant was guilty of the allegation, had reasonable grounds for that belief, and carried out as much investigation as was reasonable in the circumstances. It also held that dismissal fell within the band of reasonable responses under section 98(4) ERA 1996, and that the respondent had followed the ACAS disciplinary code in material respects. The unfair dismissal claim was therefore dismissed.

On the breach of contract claim, the tribunal held that the claimant's conduct amounted to a breach of the hygiene policy and also to theft. On that basis the respondent was entitled to treat the contract as terminable without notice under section 86(5) ERA 1996. The claim for notice pay therefore failed and was dismissed. No monetary award was made.