Mr D Kinnaird v Represented by: Mr A Baird - Trade Union Representative Toffolo Stirling Ltd — 2019

The claimant had been employed by the respondent since 1 March 1995 and was a factory supervisor. The dismissal arose from events on 19 December 2017, when he used the company fuel card at the Shell garage and the respondents later obtained CCTV, tracker and receipt evidence which they said showed he had filled a container with diesel and taken it for his own use. The tribunal accepted the evidence of KT, Mr Smith and HT as generally credible and reliable, and it did not accept the claimant's case that the process had been predetermined.

Applying section 98(4) of the ERA 1996, the Burchell test and the range of reasonable responses, the tribunal held that the respondents had carried out as much investigation as was reasonable in the circumstances. It found that the delay over the Christmas shutdown, the decision to raise the matter when the claimant was off work, the use of telephone discussions, the absence of signed witness statements and the later reliance on the ACAS Code did not make the investigation or disciplinary process unfair. The tribunal also accepted that the claimant was given notice of the allegations, the material on which the respondents relied, an accompanied disciplinary hearing and an appeal.

On the substance, the tribunal found on the balance of probabilities that the claimant had filled the container with diesel for his own personal use and had not paid for it. It rejected his explanation that the diesel was to refuel the forklift, relied on the evidence that the forklift had recently been used, that the normal procedure was to use red diesel from the yard drum, and that the claimant had not followed that procedure or marked the receipts as he said he usually would. The tribunal held that Mr Smith was entitled to conclude that the claimant had acted dishonestly and carelessly in transporting diesel in an unsuitable container.

The tribunal therefore dismissed the unfair dismissal claim. It held that the claimant's dishonest conduct amounted to a repudiatory breach of the implied term of trust and confidence, so the respondents were entitled to summarily dismiss him without notice and the breach of contract claim failed. The holiday pay claim, which was based on holiday said to have accrued during the notice period, also failed because the tribunal found summary dismissal was justified.