Mr A Weir v Thomas Cuthell & Sons Ltd: 4103072/2025
JUDGMENT
The Judgment of the Employment Tribunal is that the claimant’s claim of unfair dismissal fails, and is dismissed.REASONS
[1]The claim was heard by the Tribunal on 15 and 16 December 2025 in the Employment Tribunal, Edinburgh.[2]The claim did not succeed. Oral reasons were provided at the Hearing. ETZ4(WR)[1]The reasons for the Tribunal’s decision were given at the conclusion of the Hearing by way of an Oral Judgment.[2]The claimant has requested a copy of the Tribunal’s Judgment. The Tribunal has already issued a short Judgment confirming the Tribunal’s decision, and accordingly his request is interpreted as a request for written reasons of the Judgment.[3]These are the reasons given by the Tribunal in its Oral Judgment.[4]The claimant appeared on his own behalf, and the respondent was represented by Mr Bennison. ETZ4(WR)[5]The Tribunal heard evidence from Alistair Grant Cuthell and Paul Colin Cuthell, Directors, and from the claimant. The respondent also presented video evidence which was displayed on the screen in the Tribunal during the course of the proceedings with the consent of both parties.[6]In this case, the claimant complained that he was unfairly dismissed by the respondent.[7]It is necessary to approach this decision by addressing a number of questions which require to be answered by the Tribunal.[8]Firstly, the Tribunal must ask itself what the reason for dismissal was. Section 98(4) of the Employment Rights Act 1996 (ERA) requires the Tribunal to determine the reason for the decision by the respondent to dismiss the claimant, or, if more than one, the principal reason.[9]In my judgment, the reason for the claimant’s dismissal was clearly that of conduct, one of the potentially fair reasons for dismissal in section 98(2)(b) of ERA. The letter of dismissal states (128) that the respondent found the claimant’s actions to amount to gross misconduct or a gross breach of trust, resulting in them losing faith in the claimant’s integrity.[10]For the respondent, Mr Bennison sought to suggest that there may be a secondary reason for dismissal in the reference to a breach of trust, that is, for some other substantial reason, but in my view that is not correct. Gross misconduct is, in effect, an act which because of its very nature undermines the trust which an employer may have in an employee, and accordingly that did not amount to a secondary reason. Indeed, there was no suggestion in the evidence or in the correspondence to support this as a reason which was actually given or reached by the respondent at the time.[11]The reason for dismissal of the claimant was therefore that of conduct. There is certainly no evidence and therefore no reason to believe that there was any other reason for the claimant’s dismissal, and he did not suggest there was.[12]Next, the Tribunal considered whether the respondent had a genuine belief that the claimant had been guilty of gross misconduct. In my view, they did. Paul Cuthell, the dismissing manager, was very clear in his belief that the claimant had been responsible for money having gone missing from a charity collection box. I found Mr Cuthell to be an entirely credible and straightforward witness, very careful in his consideration of the disciplinary issue which it was his responsibility to hear and determine.[13]The Tribunal then turned to the question of whether the respondent had reasonable grounds for that genuine belief, and whether that was based on a reasonable investigation.[14]A concern was raised with the directors of the respondent that a number of charitable boxes had been tampered with, raising the suspicion that money had been removed from them. The process of collections taken at the close of a funeral service was as follows. When the family of the deceased requested that a retiring offering (that is, an opportunity given to mourners attending a funeral to place money in a collection box as they leave the service) is taken in aid of a particular charity, the respondent prepares a box, which is initially in flat pack cardboard form, and places it inside a wooden box stationed at the exit of the church or crematorium. A slot in the top of the box enables cash in the form of notes or coins to be placed into the box. Once the giving is complete, the box is covered with a label bearing the name of the deceased, the date of the funeral and the charity to benefit. The amount in the box is not counted at that stage, and accordingly is not known to the respondent.[15]Once the funeral has concluded, the box is sometimes handed to the family for onward transmission to the charity, and sometimes retained by the respondent at the family’s request, either to be paid to the charity or to be handed later to the family.[16]Having receiving notification of a concern that collections boxes had been tampered with, the directors agreed among themselves that they required to address this concern. The potential impact upon their reputation as a trusted family business able to act sensitively at a time of distress for a family could, in their view, be very significant, and they wanted to ensure that they took all necessary steps to investigate the matter.[17]Accordingly they decided to place a known sum in 3 separate collection boxes, and to ask a number of staff to transport the box from one office to another, in order to establish whether or not any depletions of the sum in the boxes took place while a particular employee had sole possession of the box in transit. The first of those boxes was given to the claimant as one of the staff who had had access to the boxes. On this occasion they were able to know the amount which was placed in the box by recording a sum of money being put into it, and then to check that amount at the end of the journey.[18]The respondent found that there was a sum of money in the retiral box labelled with the name of FS, namely £515.25, which was counted out on video and in the presence of Michelle Cuthell, a director, by Alistair Cuthell, in their Falkirk office; that the claimant was given the box in the Bo’ness parlour, and was given responsibility for its secure transmission to the Denny parlour; that he took the box in his car firstly to where he parked in near Bo’ness Old Kirk (where he participated in a funeral service), then to Denny parlour where he handed it to Ms Katie Scott; and that when the contents of the box were removed and counted in Denny, the sum of £450.25 was found to remain.[19]The claimant advised that when he left his car at Bo’ness Old Kirk, he parked it a short distance from the church, and left the box in the footwell of the front passenger seat. The car was unlocked, he said, which arose from a problem with the locking mechanism.[20]Accordingly, the respondent had clear evidence that the sum in the box had been depleted by the sum of £65 from the point when it had been placed in it in Falkirk.[21]There was no specific evidence that the claimant had taken the money from the box or was otherwise directly responsible for its removal, in the form of any eyewitness or video or CCTV evidence; and the claimant consistently denied that he had taken the money.[22]The respondent relies on the fact that the box was in the sole possession of the claimant after he took it from the Bo’ness parlour, and that it showed signs, in Denny, of having been tampered with en route to Denny, in that there were creases on the side of the box which had not been evidence in Falkirk or Bo’ness. The respondent also relies upon the fact that the sum in the box, when counted on arrival in Denny by Mr Cuthell, again visible on video, was £65 less than the amount initially placed therein.[23]The claimant challenged the respondent’s conclusions on a number of bases.[24]Firstly, the claimant denied that he had taken the money, and continued to be adamant before this Tribunal that he had not done so.[25]Secondly, he pointed out that others had sole possession of the box between the label being applied in Falkirk and its being opened in Denny. The 3 individuals he identified as having had control of the box were John Murray, the respondent’s operations manager; Michelle Cuthell and Katie Scott. He did not accuse any of those individuals of having taken the money, but maintained that each of these individuals had the same opportunity as he had to open the box, but they were not questioned about this.[26]I have considered this argument carefully, not least because the evidence demonstrated that he did not put it forward during the internal process. It appears to me that the claimant was suggesting that the respondent should have investigated the matter further with these 3 individuals. It would be unfair to the respondent to criticise them for not addressing a point which the claimant did not make to them in the disciplinary proceedings.[27]In my view, the respondent’s actions must be judged according to what they did, rather than what they might have done. They had significant information available to them that the claimant was in charge of the box without any witnesses for some time.[28]So far as the others are concerned, I addressed them in turn. It was entirely understandable that the respondent did not investigate Michelle Cuthell, since she was one of the directors who had set up the decoy box in the first place; John Murray is a senior manager with the respondent whose integrity was praised by the claimant and against whom there is no suggestion of wrongdoing by the claimant; and, although it was not available to the Tribunal, CCTV footage was made available to the claimant of the office in Bo’ness, and he accepted that there was no evidence that Ms Scott, who had charge of the box there, had done anything to interfere with it. He did suggest that Ms Scott had placed the box under her desk, and that she may therefore have creased the cardboard by kicking it inadvertently, but this was discounted by the respondent on the basis that the creases on the box demonstrated that it had been opened and resealed.[29]Accordingly, there was no basis put forward upon which it could be found that the money was removed from the box by anyone other than the claimant.[30]The claimant also raised the point that he had left the box in his unlocked car for some time in Bo’ness. He did not go so far as to say that a 3rd party could have taken the money, but the respondent did consider the possibility that that may have happened at that time. Mr Cuthell rejected it on the basis that it was inherently unlikely that, in broad daylight, a stranger might open the car door, having spotted the box on the floor, then taken time to open the box and remove £65 from it. He took the view, entirely reasonably in my judgment, that if a stranger had seen the box, they would simply have removed the box itself and worked out later how much was in it.[31]In my judgment, the respondent did have reasonable grounds for concluding that the claimant was responsible for the removal of £65 from the collection box, and they carried out a reasonable investigation whereby they reached that conclusion.[32]An employer is not expected to carry out a quasi-judicial investigation, or to apply the criminal standard of proof (namely, whether something could be said to have happened beyond a reasonable doubt) in investigating conduct cases. The standard is that of the reasonable employer, and in my judgment their investigation was within the range of reasonable investigations open to a reasonable employer.[33]It is quite true that the respondent in effect set up the investigation to see what would happen, by establishing a decoy collection box and counting the money into that box and out of it at the end of the journey. In my judgment, this was not “entrapment”, as the claimant suggested, but a reasonable and proportionate means of investigating the concern which had been brought to them. In order to establish whether or not money was being removed from a box, they would require to know at the start of the process how much was in it, but that is often unknown to the respondent. In order to investigate this matter, they had to ensure that they knew how much was in the box, in order to assess whether or not the sums were the same at the beginning and end of the journey for which the claimant was responsible.[34]The claimant was, and remained in this Hearing, anxious for the police to become involved and investigate the missing money. It appeared that the reason for this was that he believed that the police would find that he was not guilty of theft. That may well be so, but it must be borne in mind that an employer is not bound by the criminal standard of proof, of beyond a reasonable doubt. Whether the police would pursue a criminal charge against the claimant is irrelevant to whether there were reasonable grounds for an employer to conclude that he was responsible for the loss of the money by removing it from the box.[35]The claimant was critical of errors in the investigation. Firstly, he pointed out that at the Denny office count, Mr Cuthell started to count £5 notes as £10. However, on the video, it was quite clear that he corrected himself quickly, having noticed the error, and that his counting was correct by the time he concluded it. Secondly, the claimant pointed out that Mr Cuthell nominated the missing amount as £100, clearly an error. This error was then repeated in the letter inviting the claimant to an investigation meeting. However, it was corrected in the letter inviting the claimant to the disciplinary hearing. In my judgment, that was an indication that the investigation was effective and open, in that the error was identified and rectified. The very process put in place by the respondent ensured that if a point could not be proved on the evidence, it could be resolved before a decision was made, and this proved to be the case here.[36]These errors, while unhelpful, did not, in my judgment, affect the outcome in any way; nor did they undermine the accuracy of the factual findings made by the respondent, nor the fairness of the process or adequacy of the investigation conducted by the respondent.[37]The videos taken were a useful and reasonable exercise in investigation, and clearly showed that there was a deficit in the box when it was opened in Denny. This fact was not disputed by the claimant: he disputed that he was responsible for it.[38]Having concluded that the respondent had reasonable grounds to find that the claimant was guilty of gross misconduct following a reasonable investigation, the Tribunal then turned to consider whether dismissal was a sanction open to a reasonable employer in all of the circumstances. It is recognised that there may be a range of reasonable responses open to reasonable employers when confronted by a finding of this nature, and the Tribunal must decide whether dismissal was within that range of reasonable responses open to a reasonable employer.[39]In my judgment, dismissal was well within the range of reasonable responses open to a reasonable employer in the circumstances of this case. for any business to find that an employee has taken money from such a place would be alarming and amount to a breach of trust; for a business like the respondent’s that concern is particularly acute given the need for trust among clients and the public. I did not understand the claimant’s case to be that taking money from a charity box should not attract the sanction of dismissal; his position was simply that he was not guilty of that act in the first place.[40]I would wish to stress to the claimant that I was not finding him guilty of theft, nor could I do so in these proceedings, since the task before the Tribunal was to consider the actions of the respondent in the face of the allegations.[41]In all the circumstances, however, it is my judgment that the claimant’s case that he was unfairly dismissed by the respondent fails, and is dismissed.[42]I reiterate the thanks which I gave at the conclusion of the Hearing to the claimant and Mr Bennison for their assistance and their conduct toward the Tribunal during the course of the Hearing.