Employee accused of stealing recyclable scrap from workplace loses appeal against dismissal

About this case:

• Citation:
  4102740/2024
• Judgment:
  External link
• Court:
  Employment Tribunal (Scotland)
• Judge:
  Employment Judge S MacLean

The claimant, Mr B Rielly, aged 45, was an employee of Precision Windows and Doors Ltd until 3 November 2023, when his employment was terminated for gross misconduct. His evidence was that he had panicked after being stopped suddenly by a director of the respondent in her car, and had been unable to explain himself properly.

The case was heard by Employment Judge Shona MacLean. The claimant was represented by his wife, Mrs V Rielly, and the respondent by Mrs A Singh, solicitor.

No explanation given

On 2 August 2021 the claimant was hired to carry out maintenance and despatch at the respondent’s factory and yard. He was described as being held in high regard by John and Katherine Cassidy, the managing director and finance director respectively. Around June 2023, the claimant was working in the recycling area of the yard, where waste from the factory was sorted into skips by material and sent to a recycling centre in exchange for money.

In late September 2023, two employees reported a suspicion that scrap was being stockpiled and stolen from the recycling area. They claimed to have seen the claimant putting stockpiled scrap into his van and driving away, returning later with an empty van. After reviewing CCTV footage, Mrs Cassidy noticed a pattern to the claimant’s activities on Friday around tea break where he would reverse his van into the recycling area and out of range of the yard’s CCTV coverage.

On Friday 3 November 2023, Mrs Cassidy stopped the claimant in his van and asked to inspect it. His van was found to contain aluminium products from the recycling area. No explanation was given for why he had taken the aluminium other than saying he was skint. The claimant was dismissed that day. In an appeal to an impartial consultant, he said that he had put the scraps in the van with the intention of putting them into the skip later, but he wanted to go to the snack van across the road first as he was running late.

For the claimant it was submitted that he had not admitted to stealing anything. He had panicked when Mrs Cassidy had blocked his way in her car, and said that the respondent had got the situation all wrong. The respondent noted that Mrs Cassidy had been unconvinced by the explanation given by the claimant on appeal, which was not supported by another colleague who had been aware of the claimant’s activities nor with the allegations made by the two other employees previously.

Lacked awareness

In her decision, Employment Judge MacLean said of the reasons for the claimant’s dismissal: “I was satisfied that when dismissing the claimant Mrs Cassidy believed in the claimant’s guilt. Unprompted she had been alerted by employees of the claimant removing products from the premises. She viewed the CCTV footage back to August 2023. She checked the yard and noticed a pattern of stockpiling scrap. The claimant parked his van and reversed it out of the CCTV range then drove away.”

She continued: “Had the claimant not been seen by Mrs Cassidy on the CCTV on 3 November 2023 acting in the way he did no action would have been taken. The was no prior discussion about what would happen if the products were in his van.”

Asking whether dismissal was within the range of reasonable responses available, Employment Judge MacLean said: “I did not consider that Mrs Cassidy’s decision to dismiss was pre-determined. The claimant was well regarded by the respondent. There was no animosity between the claimant and his colleagues. The claimant was suspended, and Mrs Cassidy discussed the situation with Mr Cassidy before dismissing the claimant.”

She concluded: “My impression was that the claimant’s focus was on the respondent having no proof of his guilt and the subsequent absence of process. He lacked awareness of how leaving the premises with the products in the back of his van looked to the respondent and other employees. He showed no insight of the impact his actions had on others, especially those working in the recycling area. The claimant displayed no remorse about what had happened.”

The tribunal therefore concluded that the decision to dismiss the claimant was reasonable, and found in favour of the respondent.