E.T. Z (WR) EMPLOYMENT TRIBUNALS (SCOTLAND) Case No: 4111876/20195 Final Hearing held in Inverness on and February 2020 Employment Judge a Kemp Mr E Purtov v Represented by Mr J Holden Representative Suez Recycling & Recovery UK Ltd — 2020

Mr Ernest Purtov worked for Suez Recycling and Recovery UK Ltd as a plant operator at its Inverness site from 26 April 2016. After a toolbox talk on 26 March 2019 about the respondent’s theft policy, and a March 2019 reminder that items must not be removed without authorisation, the respondent investigated an incident on 16 June 2019 when the claimant and his father’s van were on site after hours. Mr Gardicki recorded that the claimant said he was there because he had dumped an old washing machine there the day before and had returned to remove the motor. Photographs showed a van within the gate and a damaged white goods item with internal components removed.

The tribunal preferred the evidence of the respondent’s witnesses to that of the claimant and his father. It accepted that Mr MacDonald, the dismissing officer, and Mr Forshaw, the appeal officer, were credible and reliable. By contrast, the claimant’s account changed over time, he gave inconsistent explanations for his father’s presence on site, and the tribunal found his evidence generally unreliable. The tribunal did not make a positive finding about the separate allegation that Mr Gardicki had sexually assaulted the claimant’s wife, because Mrs Purtova did not give evidence and the issue could not be determined definitively.

Applying section 98(4) ERA 1996 and the Burchell approach, the tribunal held that the respondent had a reasonable investigation and a reasonable belief in the misconduct allegation. It found that the investigator being a witness did not of itself make the process unfair, that the claimant had sufficient notice of the allegation, and that the non-disclosure of Mr Gardicki’s email of 20 June 2019 did not render the dismissal unfair because the decision was based on other material, including the claimant’s own explanations and the investigation outcome. The tribunal also held that the appeal, heard on 9 August 2019 and determined by Mr Forshaw, was conducted properly and could cure any earlier procedural defect.

The tribunal concluded that dismissal for conduct was within the band of reasonable responses and that summary dismissal for gross misconduct was open to a reasonable employer on the facts found. The unfair dismissal claim was therefore dismissed. No remedy or compensatory award was made because the claim failed.