A construction worker unfairly dismissed for paying for his own pottery using a company credit card has been awarded £26,000, the Bristol employment tribunal has ruled.
Despite quickly repaying the money, he was dismissed for gross misconduct, something which Employment Judge Clarkson found was outside the range of reasonable responses for an employer.
Mr Pitchell, who was employed by JATA Construction in Bodmin, Cornwall, as a labourer and driver from September 2019, had been given a “Tap and Cap” card for his expenses.
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On Thursday evening, 31 August 2023, he took £100 cash from the card and used it to purchase some pottery.
The following day, he telephoned the office to inform them that he had taken the money and wished to repay it. He asked the best way to do this, and on Monday 4 September, he left £100 cash in the office.
On 6 September, he had a meeting with company director Mr Taylor and explained his actions. At another meeting with Taylor two days later, Pitchell was dismissed for gross misconduct and was given a letter confirming this.
Pitchell appealed the dismissal, and a further meeting took place on 19 October, which Taylor also attended.
A letter dated 18 October confirmed the dismissal and that the appeal decision was final. It stated that Pitchell had “misappropriated the company credit card”, which JATA had decided was a fundamental breach of the contractual terms and that under the employee handbook on gross misconduct warrants summary dismissal.
Picthell raised a grievance regarding Taylor being both the investigator and appeal decision-maker, but then withdrew this as he was no longer an employee.
Payment debt
The employment tribunal heard that, during 2020-21, Pitchell was not paid approximately £9,000 by JATA for work undertaken as an employee. Pitchell kept a record of this debt and discussed it with Taylor. JATA cleared the debt over about 10 months, including buying the claimant tools that were offset against the amount owed.
On the date of dismissal, JATA owed Pitchell £60 for payment he had made for work on a company van whilst working in London.
The tribunal noted that Pitchell and Taylor appeared to have been friends in the past, with the claimant working at Taylor’s home and that of another director. He had also worked as a driver for Taylor’s family, and between his phone call on 1 September and his dismissal a week later, he continued to work for the company and at Taylor’s home.
The respondent failed to take account of, or make findings in regard to the personal and money lending relationship of the parties. They also failed to follow a fair procedure as the same director was investigating and making the decision and appeal decision” – Employment Judge Clarkson
The judge found that the term misappropriation, used in the dismissal letter, had the implications of dishonesty or theft.
The judge said: “I do not accept that this was an honestly held belief of the respondent. The respondent did not report the matter as theft as they knew the money had been repaid, and when they were notified of the claimant taking the money were told he wanted to repay it.”
The judgment said: “The respondent dealt with the claimant’s actions as if there had been theft, despite him having repaid the money promptly.”
Mr Ushiago, for JATA, directed the judge to the Theft Act, asserting that borrowing can amount to theft.
The judge said: “I note that the provision is only if the borrowing is in circumstances and for a period that makes it equivalent to outright disposal. No reasonable employer could have come to that conclusion.”
Personal nature of relationship
The judge added that the dismissal letter did not take into account the personal nature of the relationship between Pitchell and Taylor.
“Whilst the respondent asserts that the relationship is not relevant, I find that it is relevant in regard to reflecting the unusual business practices of the Respondent company. Further, Mr Taylor confirmed that he would have lent the £100 had he been asked for it,” said the judgment.
“When the claimant had been owed money by the company previously, this had been allowed to mount up to a very large amount, it had been paid back in offsetting money and by the purchase of objects, as well as some payments in cash.”
The judge added that, in any event, there was no reasonable or adequate investigation: “The respondent failed to take account of, or make findings in regard to the personal and money lending relationship of the parties. They also failed to follow a fair procedure as the same director was investigating and making the decision and appeal decision.
“Given their employment of an HR company, this could have been easily remedied and was therefore unreasonable.”
In a remedy judgment made in November 2024, the full reasons for which were published last week, the judge ordered JATA to pay Pitchell £26,297, comprising a basic unfair dismissal award of £2572, and a compensatory award of £23,725.
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