A distillery worker who was sacked for allegedly urinating on a whisky barrel has been awarded more than £11,000 because the organisation had no proof the incident took place.
Mr Wilson, a spirit supply operative at William Grant and Sons Distillers’ Girvan distillery in Ayrshire, had worked at the firm for 31 years at the time of his dismissal in December 2019.
On 20 November 2019, a pool of urine was discovered on the floor around the area of empty casks in the spirit blend and fill area of the distillery. The urine was discovered in the “C line” area, whereas the claimant worked in the “D line” area.
A sample was sent to a laboratory for testing and it was confirmed to be consistent with urine, although it had been contaminated with cleaning fluid.
Video footage of the claimant showed that he passed through the C line area to get to his work station, although this was not the most direct route. It was claimed he had been seen between two pallets.
It was alleged that he had urinated on a spirit storage cask when he passed through the area, and he was suspended with pay on 25 November 2019 while the incident was investigated. No date of the alleged urination was provided.
Wilson attended an investigation meeting with a union representative on 3 December 2019. He denied that he had urinated in the empty cask area and said had been in the area as he wanted a change of scenery on his way back from his lunch break.
Asked why he had been seen between two pallets, he claimed he had been distracted by a small bird between the pallets and wanted to make sure there had not been any contamination.
Several colleagues were interviewed in early December, and on 6 December 2019 Wilson was invited to another investigatory interview. He was told that a urine deodoriser had been found at his workstation, which he said he thought was cleaning spray.
On 17 December 2019 Wilson attended a formal disciplinary hearing and was told that the allegation against him amounted to gross misconduct and, if proven, could lead to his dismissal. He was given an opportunity to put forward his version of events and repeated his claim that he had walked between the two pallets, rather than the passageway at the side, because he had seen a bird in the area.
He was dismissed with immediate effect at the conclusion of the meeting. A subsequent appeal was dismissed.
Wilson made claims for unfair dismissal and wrongful dismissal at the employment tribunal and sought more than £68,000 in compensation.
The tribunal dismissed his claim for unfair dismissal, finding that the organisation had followed a fair investigation and appeals procedure. It said that the company had been satisfied that gross misconduct had occurred and that it was entitled to dismiss him without notice pay.
However, when considering whether Wilson’s dismissal was wrongful, the tribunal said that the onus was on the organisation to convince the tribunal panel that the claimant did in fact urinate. It found that no direct evidence of the incident had been presented to the tribunal and questioned why a witness who had provided statements during the investigation had not been called as a witness at the hearing.
“The tribunal’s approach is not the same as in a complaint of unfair dismissal. It is not sufficient for the employer to demonstrate a reasonable belief that the employee was guilty of gross misconduct. They must establish that the claimant did the act of misconduct alleged,” employment judge Ian McPherson said in the written judgment.
“As such, the respondents have failed to prove to the tribunal’s satisfaction that the claimant did, in fact, urinate, as alleged. Reasonable belief in his guilt, which is relevant for the unfair dismissal complaint, does not suffice for them to prove that they had grounds for his summary dismissal for gross misconduct.”
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Wilson was awarded £11,264.76 in compensation – the 12 weeks’ notice pay he should have received.
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