Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2012/01972_11IT.html
Cite as: [2012] NIIT 1972_11IT, [2012] NIIT 01972_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REF: 1972/11

CLAIMANT: Adrian Nugent

RESPONDENT: Royal Mail Group Limited

DECISION

The unanimous decision of the tribunal is that the claimant was unfairly dismissed and orders that the claimant be reinstated to his post on 31 May 2012. The respondent shall pay the claimant £9,847.17 compensation made up of £7,666.53 arrears of pay between the effective date of termination and date of hearing, £2,180.64 in respect of pay between the date of hearing and date of reinstatement and £600 in respect of a productivity bonus paid to employees in August 2011. The respondent shall restore all rights and privileges including seniority and pension rights to the claimant, in particular the respondent shall pay into the claimant’s pension fund £2,656.83 to make up the employer’s annual pension contribution at 17.1% of gross annual salary for the period between the effective date of termination and February 2012 and indemnify the claimant in respect of any employee contribution or charges payable for his re-admittance to the respondent’s pension scheme.

Constitution of Tribunal:

Chairman: Ms M Bell

Members: Mr J R Dunlop

Mr J E Martin

Appearances:

The claimant was represented by Mr Patrick Ferrity, Barrister-at-Law, instructed by Gus Campbell Solicitors.

The respondent was represented by Ms Lisa Bryson of Carson McDowell Solicitors.

1. The claimant complained in his claim that he was unfairly dismissed following an accident he had on 1 February 2011 when driving along and a dog ran across his path which he swerved to avoid, which caused him to go over a hedge and resulted in a lot of damage to the van he was driving and head and back injuries to him. The claimant complained that ‘a lot of things’ had gone on in his workplace without punishment whereas he had been dismissed and thought it was to do with injuries received in an accident on 24 March 2007.

2. The respondent resisted the claimant’s claims and asserted that it had fairly dismissed the claimant for gross misconduct for driving below an acceptable standard causing a road traffic collision and endangering his own safety.

ISSUES ON LIABILITY

3. In determining the question whether the claimant was unfairly dismissed by the respondent the following issues were before the tribunal:-

(i) Was the dismissal automatically unfair for failure to follow the statutory disciplinary and dismissal procedures?

Otherwise,

(ii) Has the respondent shown the reason for dismissal?

(iii) Was it for a reason relating to the conduct of the claimant?

(iv) Did the respondent act reasonably in treating the conduct as a sufficient reason for the dismissal? That is:

· Did the respondent have a reasonable suspicion amounting to a belief in misconduct of the claimant, reasonable grounds upon which to sustain the belief, and at the stage the belief was formed on those grounds had the respondent carried out as much investigation into the matter as was reasonable in all the circumstances?

· Was the misconduct in question a sufficient reason for dismissing the employee?

EVIDENCE

4. The tribunal considered the claim, response and agreed documentation, including a statement of facts, chronology of events, cast list, schedule of loss and indexed bundle of documentation. Oral evidence was heard from Mr David Hutton, delivery sector manager for the respondent, Mr Patrick Latimer, the respondent’s appeals manager and from the claimant.

FINDINGS OF FACT RELEVANT TO LIABILITY

5. The claimant was employed by the respondent as a postman, postal grade OPG, carrying out rural deliveries, he commenced employment on 14 October 1998 and worked for the respondent until he was dismissed on 10 June 2011 for gross misconduct. Prior to his effective date of termination of 10 June 2011 the claimant’s rate of pay was £380 gross per week, being £279 net and he was a member of the respondent’s pension scheme.

6. In the course of his employment the claimant was issued with a driver manual detailing his main responsibilities as a driver and guidance on the standards required by the respondent when driving on duty. The manual in particular;

· requires drivers to observe the highway code at all times,

· states that ‘Seat belts must be worn at all times while driving’,

· under ‘Observation’ states ‘ Always be ready to stop’,

· ‘Never use a hand-held mobile phone to dial out or text for any reason while driving’,

· That ‘extra care must be taken when driving on country roads. Be prepared to encounter unusual traffic, such as slow moving farm equipment or animals.’

· ‘Always slow down when approaching bends or obstacles and be prepared to stop suddenly if something unexpected happens.’

7. The respondent has a ‘Royal Mail Conduct Code’, applicable to all employees, its stated purpose being that it is designed to help and encourage all employees to achieve and maintain standards of conduct including job performance. The claimant was issued with the respondent’s Code during his employment. In particular the Code sets out under:

· ‘GUIDING PRINCIPLES’, that at every stage in the procedure the employee will be advised of the full nature of the charges against him, that he will be made fully aware of the evidence against him, that no disciplinary action will be taken against an employee until the case has been satisfactorily investigated, that no employee will be dismissed for a first breach of discipline except in the case of gross misconduct, when progressing a case and new information indicating a different charge comes to light, then a new charge will be made, and employees have the right to have their previous work record and conduct and any extenuating circumstances fully taken into account.

· ‘THE DISCIPLINE PROCESS’, the procedure that will be followed when it is considered that an employee’s conduct may have breached a rule or standard. The Code provides that after a fact finding investigation by the employee’s line manager, if the manager feels that there is a case to answer and if the allegation is proven, that the penalty appropriate could be outside his authority, he must at that stage refer the matter up and the Code sets out the authority levels of managers to give discipline penalties.

· ‘GROSS MISCONDUCT’, that some types of behaviour are so serious and so unacceptable, if proved, as to warrant dismissal without notice, that it is not possible to construct a definitive list of what constitutes gross misconduct, and sets out examples of some types of behaviour which in certain circumstances could be judged to be gross misconduct, including, ‘Deliberate disregard of health, safety and security procedures or instructions’.

· ‘DISCIPLINE PENALTIES’, it provides for three types of penalty, a ‘Reprimand’, a ‘Serious Warning’ and ‘Major Offence (Dismissal or action just short of dismissal)’. One of the seven possible penalties under the heading major offence is ‘Dismissal with notice – except in the case of proven gross misconduct dismissal will always be with notice …’

· ‘APPEAL PROCEDURE’ that, ‘The appeal is a hearing at which the appropriate appeal manager will rehear the case in its entirety. It is the employee’s opportunity to state his/ her case why the penalty should be aside or reduced. The result could be revoking or confirming the decision, or reducing the penalty.’

8. The respondent regularly briefed drivers at their morning conference call about safety matters including ,‘near misses or accidents’ which had taken place regionally or nationally within the respondent’s organisation from which driving risks were identified and pointed out. The respondent also delivered training to drivers in the form of ‘work time listening and learning briefs’ highlighting various safety concerns.

9. No record was kept by the respondent, specific to the claimant, of actual training sessions attended by him.

10. During his employment the claimant completed an online interactive driver risk assessment package which covered driving behaviour in difficult conditions, observation techniques, being aware of hazards and driving on country roads.

11. The respondent in training provided to drivers advocated the use by them of ‘defensive’ driving techniques.

12. No explicit reference was contained in documentation referred to at hearing that failure to perform in accordance with driver training provided could lead to summary dismissal and the tribunal find that the claimant was not given any specific warning of this in the course of his employment.

13. No document was provided to the claimant in the course of his employment containing a clear statement that an employee who failed to wear a seatbelt would be subjected to disciplinary action.

14. It was not the respondent’s practice to dismiss employee’s for a failure to wear a seatbelt.

15. No document was given to the claimant in the course of his employment warning that whilst a vehicle is in motion, all hand held phones should be turned off, or diverted to voicemail and failure to do so would result in disciplinary action.

16. The claimant had a clear disciplinary record.

17. On the afternoon of 1 February 2011 the claimant’s daughter telephoned Mr Victor Morrison, the respondent’s delivery manager and informed him that her father had been involved in a road traffic accident, that he seemed to be confused and that her mother was on the way out to the scene. The claimant had been out on his normal delivery route. Mr Morrison telephoned the claimant and was told that he had put his van over a hedge into a field, that he was confused and could not remember what had happened.

18. Mr Morrison left to go to the scene of the accident and on the way there he met the claimant with his wife, who was taking him to his GP. Mr Morrison observed the claimant to be visibly shaken and holding his shoulder in pain. The claimant told Mr Morrison that a dog had run out in front of him causing him to swerve and go into the hedge. Mr Morrison continued to the scene of the accident.

19. Mr Morrison informed Mr Hutton of the claimant’s accident.

20. It is the respondent’s normal procedure for road traffic collision investigations to be carried out by the employee’s line manager with expert assistance provided by the respondent’s Logistics team if required.

21. The claimant’s accident did not fall under RIDDOR Regulations and so Mr Gerry McLaughlin, the respondent’s regional safety advisor, who has expertise in and responsibility for investigating and reporting upon accidents for the respondent did not have responsibility to provide assistance unless asked by the reporting manager to do so. Mr McLaughlin has assisted in road traffic collision investigations when asked, particularly by less experienced managers.

22. Mr McLaughlin received a copy accident report from the respondent’s accident reporting system, ERICA, which is used for accident claims purposes, on 2 February 2011, and telephoned Mr Morrison to provide him with some advice on his investigation. Mr McLaughlin followed up his conversation with Mr Morrison with an email. No evidence as to the advice given by Mr McLaughlin to Mr Morrison was adduced at hearing.

23. In the investigation report Mr Morrison subsequently prepared, a copy of which was included in the agreed bundle and is accepted as accurate, he set out,

‘when we arrived at scene of accident Royal Mail vehicle was barely visible as vehicle was tight into base of hedge below the road. There was severe damage to the vehicle. On inspection of the vehicle the airbags had gone off, there was severe damage to the front passenger side, roof, front lights and rear driver’s side.

There were a few items of mail in the front of vehicle, most was in the rear compartment.

The accident scene was a straight road and first impression was that Royal Mail vehicle had proceeded along road, something had happened to distract driver, and driver had collided with tree and ended up in field facing back up on the road the way he had been coming down. There were no brake marks on the road or on the grass verge and no visible reason for this accident. The road was dry and visibility was good.’

24. Following the accident the claimant was kept in hospital overnight due to head injury, he was advised that he also had a small bone broken in his lower back which would heal itself and was released the following afternoon.

25. The claimant was not wearing his seatbelt at the time of the accident.

26. Mr Morrison visited the claimant at home on 3 February 2011 and together they visited the accident scene. Mr Morrison asked the claimant to give an accurate account of what had happened as they needed to identify the cause of the accident due to its seriousness and possibility that there could have been a fatality.

27. In his report Mr Morrison set out that after delivering mail to a house that the claimant had turned right onto the road, that the road was:-

‘approx 250 yards of straight road with clear visibility.

RTA occurred approx 125 yards along this road.

We proceeded along road and I asked Adrian to advise when he first noticed the dog. Adrian stated that he first noticed the dog approx 50 yards from the point of RTA.

Dog was on left hand side, coming towards him.

I asked Adrian what speed he was doing. Adrian stated he was doing about 30/35 mph. I asked what did he do when he saw the dog.

Adrian did not do anything as he thought he was able to pass the dog.

I asked Adrian did he not consider slowing down due to the width of road and due to an animal on the road.

Adrian stated he thought he was able to pass by the dog I asked Adrian to describe what had happened next.

Adrian stated that as he approached the dog, it darted across the road and he swerved to try and avoid hitting it. He caught grass verge and went over the hedge.

I asked Adrian did he brake.

He replied he did not.

I asked why he swerved rather than hit the brakes.

He stated that he did not want to hit the dog.’

In the investigation the claimant confirmed that he was not wearing his seatbelt at the time, that he was not smoking, had not been on the telephone or looking at mail for the next delivery point. Mr Morrison advised the claimant that there might be a request made to him for his mobile phone records. Mr Morrison asked the claimant what he could recall immediately after the accident and recorded in his report ‘Adrian stated he could not remember getting out of the vehicle. I asked was he on his phone when the RTA took place. He stated that his daughter had rang after the RTA had taken place.’

28. On 9 February 2011 Mr Morrison asked the claimant further questions including ‘why his daughter had contacted the office on the day of RTA. Adrian stated that probably because he was confused. He stated he had made no phone calls.’ The claimant confirmed that he had no problem with the respondent requiring his mobile phone records, he had nothing to hide. Mr Morrison set out his conclusions in his report as follows,

‘Straight Road approx 250 yards clear visibility.

Noticed Dog 50 yards before RTA location.

Did not take any action to slow down or stop approaching dog.

Did not brake – no brake marks on road or grass verge.

Confirmed was not wearing seatbelt.

Has stated No other distractions – not eating, not smoking, not on phone, not looking at mail.

Does not remember getting out of vehicle.

Stated daughter phoned just after RTA.’

Mr Morrison finally confirmed that he contacted people suggested as possible owners of the dog by the claimant but they did not have a dog or see any dog on the road, also, that on enquiry the dog warden had no reports of a stray dog in the area.

29. By letter of 29 March 2011 Mr Aidan McCreesh, the respondent’s area delivery office manager, invited the claimant to a fact finding interview to take place on 1 April 2011 to discuss the accident further and advised that the ‘purpose of the interview is to establish the facts and determine if formal charges in accordance with the Conduct Code may be appropriate.’ The tribunal find that at that point the respondent was not contemplating dismissing or taking relevant disciplinary action against the claimant but sought to further establish the facts of the accident.

30. The claimant attended the fact finding interview with Mr McCreesh, accompanied by his union representative on 1 April 2011, typed copy minutes were included in the agreed bundle and are accepted as accurate. The claimant was asked to give an account again of what happened the day of the accident. The claimant confirmed that he had made a delivery and proceeded to his next delivery point which was 250 – 300 yards down the road on the right hand side, that he passed two other houses on the way and half way down the road, approximately 150 yards, noticed a dog standing on the left hand side of the road about 50 yards ahead, he came up beside the dog, it bolted across the path of the van to the right hand side of the road, he was travelling at approximately 30/35 mph, he swerved to the right and braked to try and avoid the dog and that the last thing he could remember was a small tree in front of him and then his memory ‘goes blank’. When asked why he could not have stopped given he was only travelling at 30/35 mph he replied that the automatic reaction was to swerve and brake, and given the narrowness of the road, the van must have caught the grass verge and ended up in the field. Mr McCreesh asked, did the claimant slow down given he had seen the dog approximately 50 yards prior to the accident, he replied that he had slowed down a bit, but it was usual to see dogs on rural roads. The claimant, on enquiry, identified the type of dog, named a family with a dog the same although he was not sure this was the same dog, he confirmed that he was not wearing his seatbelt as he does not always do so, especially when delivering house to house and that he was not doing anything to cause him to be distracted, in particular smoking, eating, direct sunlight impairing his vision, or, using a mobile phone and that he would not have any issue if the respondent wished to see his mobile phone records for the period. When asked how he made contact with someone to tell them about the accident the claimant stated that some time after it his daughter phoned him but he was not sure how long after, he was out of the van and standing in the field and she initially could not ascertain his whereabouts. Mr McCreesh asked the claimant if he was knocked out or unconscious at any time, the claimant replied that he might have been but was very confused and relayed to Mr McCreesh that his wife had told him that a local man drove into the field in his jeep and took him out onto the road where his wife was waiting and that he was kept in hospital overnight for observation.

31. In accordance with the respondent’s conduct code Mr McCreesh wrote to Mr Hutton on 5 April 2011 and confirmed that following his initial consideration into allegations of misconduct against the claimant he considered that there was a case to answer which might require a decision beyond his level of authority and enclosed relevant papers and photographs of the vehicle at the accident scene from his accident investigation.

32. The claimant’s was the first conduct case Mr Hutton had had to deal with involving a serious accident.

33. Whilst the union’s area health and safety representative would have had no input in a decision whether conduct proceedings were appropriate, it was normal practice on the occurrence of an accident at work for the respondent to involve the area representative in its investigation to help identify the cause for further accident prevention. The union’s area health and safety representative was not notified about the claimant’s accident and not involved in its investigation at any stage to help identify its cause.

34. Mr Hutton wrote to the claimant on 26 April 2011 and advised him that following the initial fact finding interview concerning alleged misconduct against him, he was now charging the claimant with ‘Gross Misconduct by driving below an acceptable standard causing road traffic collision endangering your own safety.’ The claimant was asked to attend a formal conduct interview on 3 May 2011 and informed ‘if I decide the charge is substantiated when determining any penalty, I may also need to take into account your current conduct code record which is currently clear’ and warned that one possible outcome could be his dismissal.

35. A disciplinary meeting / ‘formal code interview’, took place on 3 May 2011 conducted by Mr Hutton, the claimant attended accompanied by his union representative. Copy typed minutes with the claimant’s comments handwritten thereon were included in the agreed bundle and are accepted as accurate. Mr Hutton explained to the claimant the charge against him was ‘driving below an accepted standard causing a road traffic collision, and endangering his safety’ and if the case was found against him he could face a decision up to dismissal. An account of the accident was put to the claimant which he agreed to be a fair account. Mr Hutton questioned the claimant about not wearing his seatbelt, about the completion of driver training, why he had not slowed down when he saw the dog, how he expected to get past the dog on such a narrow road, why he was unable to brake and stop. Mr Hutton asked the claimant, ‘was he travelling faster than 30 mph and [was] the reason he was unable to stop’ to which the claimant, ‘replied no he was doing approx 30 mph and he automatically swerved to avoid hitting the dog’. Mr Hutton enquired whether the claimant had seen the dog before and if it was usually in the area, if he could explain the position the vehicle ended up facing back the way it came in the field, if he had braked or not as there was no evidence of brake marks, how his daughter ended up reporting the accident, whether he was speaking to her on the phone before the accident or she phoned and he attempted to answer whilst driving, whether he was driving in an unsafe manner or carried out an unsafe act which contributed to the accident and his subsequent injuries. The claimant in response to Mr Hutton’s questions maintained the account he had previously given. Handwritten notes added to the minutes of the meeting refer to the claimant not having had continuous sight of the dog and Mr Hutton stating that he would have to go to the scene of the accident.

36. On 3 May 2011 Atos Healthcare assessed and provided at the request of the respondent an occupational health report on the claimant commenting on his current capacity for employment in view of relevant medical issues. The claimant returned to work on 9 May 2011 as part of a return to work rehabilitation plan following his accident.

37. Following the disciplinary meeting Mr Hutton requested mobile phone records from the claimant which he provided.

38. As confirmed by Mr Hutton in his evidence, after his interview with the claimant he went to the accident scene and drove the same route, performed an emergency stop safely and took photographs of the scene including ‘the width of the road, the straightness of the road and looking at the drop on the right hand side of the road.’ Mr Hutton stated in his evidence that he considered the distance from the claimant’s last delivery point to the next delivery point was more than 500 yards, not 250 – 300 yards, of straight flat road and that he formed the belief from the scene that the claimant had been driving faster than 30/35 miles per hour as his vehicle had been going too fast to stop, that it did not slide and was facing backwards. Details of Mr Hutton’s visit to the accident scene and his findings and the photographs taken by him were not put to the claimant for comment before a decision was made by Mr Hutton in respect of the disciplinary proceedings.

39. Mr Hutton did not seek input in the claimant’s case from anyone outside his operational line, in particular, he did not seek any assistance available to him from within the respondent’s organisation from individuals with some expertise in road traffic investigation and reconstruction.

40. By letter of 10 June 2011 to the claimant Mr Hutton confirmed his decision that the claimant receive a ‘Major Offence’ in respect of the charge of gross misconduct, by driving below an accepted standard causing a road traffic collision and endangering his own safety. Mr Hutton confirmed that the claimant was dismissed without notice on 10 June 2011 and attached details of his reasons.

41. In his reasons Mr Hutton considered matters under three headings, the mobile phone, the seatbelt, and, the dog/speed. With regard to:

· The mobile phone, he concluded ‘there is insufficient evidence to determine whether or not the mobile phone is a contributory factor in relation to the accident, however I do feel that it is co-incidental that his daughter phoned him shortly after the accident.’

· The seatbelt, he concluded that the claimant ‘has shown deliberate disregard of a health and safety instruction.’

· The dog/speed, he stated that it was ‘academic whether there was a dog on the road or not as it is my belief given the damage and the situation and position that the vehicle ended up in that Mr Nugent was driving too fast and if he did not see a dog on the road then he was at fault for not seeing it or seeing it too late.’

Mr Hutton concluded that the claimant’s driving behaviour was below that expected by the respondent and that the claimant’s ‘stated reason for the dog causing him to swerve suddenly is not credible as he had stated he had clearly seen the dog and that he performed below the expected standard for a Royal Mail employee. It is my belief that his decision to drive at a speed that caused him to swerve suddenly contributed to the cause of the collision.’ In his summary Mr Hutton stated ‘It is my belief that he drove inappropriately for the surroundings. I believe that by not wearing his seatbelt demonstrates that he does not take road safety or his own safety seriously and he performed below the standard expected of a Royal Mail driver.’ Also, ‘Whilst I believe he was the sole cause of the collision I also believe his mitigation lacks credibility when I look at the position the vehicle ended up in along with the damage and the injuries he sustained.’ Mr Hutton stated that he had considered and decided against action short of dismissal, also that he had considered the claimant’s length of service and clear record but that he had lost trust and confidence in him given his actions and believed that the claimant had deliberately disregarded his responsibility not to endanger himself or others through thoughtless actions with the potential consequence of death or serious injury.

42. On 10 June 2011 the claimant lodged an appeal against the respondent’s decision to dismiss him in which he stated that he felt the punishment was too severe.

43. The claimant’s appeal was allocated to Mr Latimer to deal with.

44. Prior to arranging an appeal hearing with the claimant Mr Latimer sought confirmation from the respondent’s Local Area Transport Team whether the claimant had been involved in any previous accidents which were recorded against him as ‘blameworthy. Mr Latimer was provided a printout from the respondent’s ERICA system showing three accidents recorded as blameworthy, including the accident on 1 February 2011. The claimant in the course of his employment had been involved in three earlier road traffic collisions, he did not consider that he had been at fault and at no stage was he informed that for accident claims purposes that the respondent had deemed him blameworthy in respect of two of the earlier accidents, nor had any conduct proceedings been taken against him in respect of these.

45. An appeal hearing took place on 7 July 2011 conducted by Mr Latimer, the claimant attended with his union representative. Agreed minutes of the appeal hearing with the claimant’s handwritten comments attached were produced and are accepted as accurate. At the hearing Mr Latimer put a summary of events as understood by him to the claimant. The claimant’s representative raised points regarding the handling of the case, in particular the failure to involve the local union health and safety representative, to notify the respondent’s accident manager, to make further enquires about the claimant’s daughter and her call, to check all names and addresses provided for possible owners of the dog, that the claimant was out performing deliveries in his own car in the four weeks prior to his dismissal and Mr Hutton had clearly not lost trust and confidence in him then, that the claimant made one error of not wearing a seat belt, normal practice would be a serious warning, not a dismissal, and the claimant had an unblemished record. Mr Latimer put an account of his understanding of the accident to the claimant and proceeded to ask the claimant specific questions including when he first saw the dog, where it was, if he viewed it as a potential hazard, if he slowed up when he saw it approaching, the direction it ran and direction he swerved. The claimant responded in accordance with the account he had previously given and confirmed that he normally would keep an eye on any animal, but this dog disappeared from sight and then suddenly reappeared as it darted across the road in front of him. Mr Latimer in particular put it to the claimant;

· That surely it would have made sense to swerve in the opposite direction, he replied that he had had no time to think, as the dog came out he just swerved to the right, he did not know why, it all happened in a split second, that it was may be just panic on his part.

· Had he not been told in training to do an emergency stop, he replied he was unsure if told in training anything specifically about this type of situation, it could have been the thing to do but he was afraid of killing the dog and his automatic reaction was to swerve.

· That he had stated to Mr Morrison that he did not brake whereas to Mr McCreesh that he did, the claimant stated that he meant that he did not brake suddenly, that he did brake as he swerved.

· That he explain how his vehicle came to be over the hedge and facing in the opposite direction to which he had been going, the claimant stated that he honestly did not know, that he could not remember if he was unconscious or not and he only started to remember some things later that evening.

· Whether he was wearing his seatbelt, the claimant indicated that he thought there was something in policy that allowed them not to be worn when driving short distances.

· Whether his injuries were consistent with an impact at 30 mph, the claimant confirmed that neither the hospital nor Atos commented on this.

· Where his phone was and if it was on or off at the time of the accident, the claimant confirmed it was in his breast pocket and it was probably on.

· This was his third blameworthy accident from the respondent’s records and enquired whether he had been awarded any conduct penalties as a result, the claimant confirmed no, there had been no follow up and he had never been informed that he had been held blameworthy or that these accidents had been recorded against him as such.

46. Before making a decision on the appeal Mr Latimer made enquires of Mr Gerry McLaughlin by email on 8 July 2011 as to his involvement, if any, in the investigation, interviewed Mr Morrison on 11 August 2011 and visited the accident scene with Mr Morrison on 11 August 2011. Mr Latimer in his record of his visit to the scene set out ‘Looking at the scene, it was impossible to work out how Mr Nugent’s vehicle had come to rest in the position identified in the photo’s taken at the time’. On 16 August 2011 Mr Latimer emailed Mr McCreesh and enquired if he was aware of the respondent’s accident management centre having deemed the claimant to have had a blameworthy accident in December 2009 and if he would have communicated this decision to him, Mr McCreesh confirmed that he could not remember but it would be office policy to inform staff. Mr Latimer interviewed Mr Hutton on 18 August 2011.

47. Mr Latimer wrote to the claimant on 22 August 2011 providing him copies of notes from his interviews with Mr Morrison and Mr Hutton, his emails with Mr McLaughlin and Mr McCreesh, and a record of a recommendation from the respondent’s Accident Management Centre that the accident on 19 December 2009 be recorded as a ‘blameworthy’ accident, for comment.

48. The claimant wrote to Mr Latimer with his comments on 24 August 2011.

49. Mr Latimer did not put to the claimant at any point during the appeal process the allegation that his mobile phone was not diverted to voicemail contrary to policy, for comment.

50. On 31 August 2011 Mr Latimer wrote to the claimant with his decision on appeal that the claimant had been treated fairly and reasonably and that he believed the original decision of dismissal without notice was appropriate and rejected the claimant’s appeal. In his ‘Appeal Hearing :Deliberations’ Mr Latimer acknowledged that under the respondent’s ‘ERICA’ guidance on ‘Incident Reporting & Investigation process’ where possible the line manager should involve the union safety representative, taking account of his/ her input, which did not happen in this case, but that the union safety representative’s role would be strictly to help determine the cause of the accident and ways of preventing similar accidents in the future, for accident prevention and would have no role in determining the appropriateness of any subsequent conduct investigation. Mr Latimer set out that ‘As well as acknowledging that he was not wearing his seat belt, Mr Nugent has also acknowledged that he was carrying a mobile phone on his person at the time of the accident. He stated to me that it was probably in his breast pocket and that it was probably on. Royal Mail policy on mobile phones is also clear. This policy states ‘‘whilst the vehicle is in motion, all hand held phones should be turned off or diverted to voicemail’’. The evidence from Mr Nugent is that, contrary to policy, his phone was switched on. Further evidence, i.e. the incoming call from his daughter in the immediate aftermath of the accident, would also suggest that the phone was not diverted to voicemail.’ Mr Latimer stated, ‘I find it difficult, as do the previous managers involved in this case, to reconcile the amount of damage caused to the vehicle with Mr Nugent’s claim that he was only travelling at 30/35 mph.’ With regard to the respondent’s Accident Management Centre’s record showing two previous accidents recorded as blameworthy ‘Other than the report from the Accident Management Centre, I do not have any evidence to either support or reject Mr Nugent’s claim that he was not spoken to about the decision.’ In his conclusion Mr Latimer confirmed that the respondent operates one of the largest vehicle fleets in the United Kingdom. He also set out ‘I have no reason to question his claim that there was a dog and that it ran across the road in front of him. I have no reason to question his claim that there were no other distractions. What I do have reason to question however is his claim to have been travelling at 30/35 mph, his rationale for not wearing his seatbelt, how he reacted to the initial sighting of the dog and how he then reacted to the dog running out in front of him.

Mr Nugent claims that he was travelling at no more than 30/35 mph. The damage caused to his vehicle ( the vehicle has been written off ) and its final resting place following the crash suggest to me that he was actually travelling in excess of those speeds.’ Mr Latimer stated that he did not accept the claimant’s claim that he was unaware of the respondent’s policy on the wearing of seat belts. Mr Latimer suggested that if on first sighting the dog was 50 yards ahead the claimant had plenty of time to adjust his speed, that he did not believe the claimant reacted appropriately and did not believe he made any adjustments to his speed and wrote, ‘I believe his failure to adjust to the situation ahead of him directly led to the subsequent accident.’ With regard to the claimant’s reaction when the dog ran out in front of him, Mr Latimer stated that he could not reconcile that the claimant swerved his vehicle in the same direction that the dog was running. Mr Latimer concluded that all it’s ‘employees have a responsibility to take care of their own safety and the safety of others, which includes the time when they are driving official vehicles. The majority of accidents at work, including road traffic accidents are caused by unsafe acts which result from either poor operational practices or the employee’s personal approach. I believe that, in this case, Mr Nugent’s personal approach had fallen far short of that expected and that his actions could have resulted in more serious consequences. Having taken account of his service and record, I have considered whether a penalty short of dismissal would be appropriate. The RM code of conduct is clear that a deliberate disregard for health and safety can be deemed, in certain circumstance, to be gross misconduct. I believe that Mr Nugent is guilty of gross misconduct in this matter and that a penalty of Summary Dismissal is therefore appropriate.’

51. Whilst a number of factors, namely the seatbelt, mobile phone, actions on first sight of the dog and subsequently when it ran out were put forward as the reasons for the claimant’s dismissal, the tribunal find that both Mr Hutton and Mr Latimer formed the belief that excessive speed was the cause of the claimant’s accident based on an inference drawn from the vehicle position and damage and this was the actual reason for the claimant’s dismissal.

52. No evidence was adduced at hearing in respect of the complaint set out in the claimant’s originating claim that he thought his dismissal was to do with injuries received in an accident on 24 March 2007.

LAW RELEVANT TO LIABILITY

53. Under Article 126 of the Employment Rights (Northern Ireland) Order 1996 an employee has the right not to be unfairly dismissed by his employer.

54. The Employment (Northern Ireland) Order 2003 at Schedule 1 sets out the statutory dismissal and disciplinary procedures to be followed as a bare minimum where applicable, by an employer contemplating a dismissal. The standard procedure consists of three steps. At Step 1 an employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee and send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter. Step 2 requires a meeting and Step 3 an appeal.

55. A dismissal may be regarded as automatically unfair under Article 130A (1) of the 1996 Order where one of the statutory dismissal and disciplinary procedures applies in relation to the dismissal, procedure has not been completed, and, the non-completion of the procedure is wholly or mainly attributable to failure by the employer to comply with its requirements, otherwise Article 130 sets out how the question of whether a dismissal is fair or unfair is to be determined.

56. Article 130(1) of the 1996 Order provides that in determining for the purposes of this part whether the dismissal of an employee is fair or unfair, it is for the employer to show -

(a) the reason (or, if more than one, the principle reason) for the dismissal, and

(b) that it is either a reason falling within Paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

Reasons falling within Paragraph (2) include at Article 130(b) if it relates to the conduct of the employee.

57. Under Article 130(4) of the 1996 Order where the employer has fulfilled the requirements of Paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.

58. It is established that the approach the tribunal should take in deciding whether an employer acted reasonably in treating an employee’s conduct as a sufficient reason for dismissal is set out in the case of Iceland Frozen Foods - v - Jones [1983] ICR17, such that;

1. The starting point should always be the words of Article 130(4).

2. In applying the Article an industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair.

3. In judging the reasonableness of the employer’s conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt from that of the employer.

4. In many, though not all cases, there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, and another quite reasonably take another.

5. The function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted, if the dismissal falls within the band the dismissal is fair, if the dismissal falls outside the band it is unfair.

59. In the context of a misconduct case Arnold J in British Home Stores-v-Burchell [1980] ICR303 stated “what the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further.

It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance, to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being ‘sure’, as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter ‘beyond reasonable doubt’. The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstances be a reasonable conclusion”.

60. Harvey on Industrial Relations and Employment Law at division D1 Unfair Dismissal/ Misconduct, discusses dismissals relating to the conduct of an employee at paragraphs [1351]-[1600], in particular setting out at paragraphs:

[1353]

‘….that it will be relatively rare for a single act of misconduct to justify a dismissal. Generally, apart from serious acts of misconduct, some sanction short of dismissal should be imposed initially....’

[1398]

‘…. the failure to adopt a specific disciplinary rule may weaken the employer's position.’

[1399]

‘….if the employee infringes a rule breach of which under his contract does not constitute grounds for dismissal but only for a warning, it will be very difficult for an employer to show that the dismissal is fair .…’

[1400]

‘….why specifying the rules is desirable is that the employer will be more justified in dismissing an employee summarily and without a warning where the rule explicitly states that breach of the rule will attract instant dismissal than he will in the absence of any such rule. Effectively the rule itself acts as a substitute warning. If there is no such clear guidance then except for clear examples of gross misconduct, a tribunal is likely to conclude that a summary dismissal or a dismissal without a warning is unfair.…’

[1463]

‘If there is generally a dispute about whether misconduct was committed then the employer must investigate. The employer is unlikely to be acting reasonably if his belief that the employee has committed misconduct is unsupported by any objective evidence….’

[1482]

‘The investigative process is important for three reasons in particular:

· it enables the employer to discover the relevant facts to enable him to reach a decision as to whether or not an offence has been committed;

· if properly conducted, it secures fairness to the employee by providing him with an opportunity to respond to the allegations made; and

· even if misconduct is established, it provides an opportunity for any factors to be put forward which might mitigate the offence, and affect the appropriate sanction.

…. Stephenson LJ in W Weddel & Co Ltd v

Tepper [1980] IRLR 96 at 101:

''… [employers] do not have regard to equity or the substantial merits of the case if they jump to conclusions which it would have been reasonable to postpone in all the circumstances until they had, in the words of the [employment] tribunal in this case, “gathered further evidence” or, in the words of Arnold J in the Burchell case, “carried out as much investigation into the matter as was reasonable in all the circumstances of the case”. That means that they must act reasonably in all the circumstances, and must make reasonable inquiries appropriate to the circumstances. If they form their belief hastily and act hastily upon it, without making the appropriate inquiries or giving the employee a fair opportunity to explain himself, their belief is not based on reasonable grounds and they are certainly not acting reasonably.”’

APPLICATION OF THE LAW TO THE FACTS FOUND RELEVANT TO LIABILITY

On consideration of the above and submissions made:

Was the dismissal automatically unfair for failure to follow the statutory disciplinary and dismissal procedures?

61. The tribunal is satisfied that the statutory dismissal and disciplinary procedures have been complied with. It is not persuaded as per Mr Ferrity’s submissions that the statutory procedures were triggered by the respondent’s letter of 29 March 2011 which should be considered as the ‘step one’ letter and as such that it was defective in its failure to set out particulars of the charge being considered against the claimant in sufficient detail to enable him to understand the situation and charges he was facing, thus rendering his dismissal automatically unfair. The tribunal notes Ms Bryson’s submission that the respondent has two different investigation protocols and finds that at the stage of the letter inviting the claimant to a fact finding interview the respondent was not contemplating dismissing or taking relevant disciplinary action but was seeking to establish facts relating to the accident, in accordance with procedures provided for in its conduct code which would then enable it to contemplate whether dismissal or disciplinary action might be appropriate under the Code and if so to sufficiently particularize detail of the charges before a disciplinary hearing took place. The tribunal find that the respondent’s letter of 26 April 2011 amounted to the ‘step one’ letter under the statutory dismissal and disciplinary procedure. The claimant’s dismissal was not automatically unfair under Article 130A (1) of the 1996 Order.

Has the respondent shown the reason for dismissal? Was it for a reason relating to the conduct of the claimant?

62. The burden of proof is on the respondent to establish the reason for the dismissal and that it was for a reason relating to the conduct of the claimant. It was not in dispute that the respondent’s genuine reason for the claimant’s dismissal related to his conduct. Misconduct is a potentially fair reason for dismissal.

Did the respondent act reasonably in treating the conduct as a sufficient reason for the dismissal?

63. It is quite clear that it is not the tribunal’s role to retry the allegation of misconduct against the claimant, nor to consider whether we personally think that dismissal was fair, or to substitute our decision as to what was the correct course for that of the respondent, but to apply the objective standards of the hypothetical reasonable employer to all aspects of the question whether the claimant was fairly and reasonably dismissed.

- Did the respondent have a reasonable suspicion amounting to a belief in misconduct of the claimant, reasonable grounds upon which to sustain the belief and at the stage the belief was formed on those grounds had the respondent carried out as much investigation into the matter as was reasonable in all the circumstances?

64. The tribunal is not satisfied that the respondent, when it formed a belief in the misconduct of the claimant, had carried out as much investigation into the matter as was reasonable in all the circumstances so as to justify its state of mind at the moment of dismissal. The tribunal is mindful that as the appeal process can potentially cure defects in the disciplinary process the relevant point in time is on conclusion of the appeal decision. The tribunal notes that this was the first ‘serious accident’ that Mr Hutton had dealt with under the respondent’s conduct code and that prior to this his involvement had been dealing with lesser offences such as failure to carry out vehicle checks. The respondent had available to managers investigating accidents assistance from individuals with some expertise in accident investigation and reconstruction. Whilst the union’s area health and safety representative would have had no input in conduct proceedings, Mr Hutton did not observe the normal practice of involving the union’s area health and safety representative in the investigation of the accident to help identify the cause for further accident prevention, this was identified by Mr Latimer on appeal. Mr Hutton visited the accident scene and took photographs but did not put to the claimant for comment his observations upon which he later relied in making a decision. Both Mr Hutton and Mr Latimer expressed their inability to reconcile the vehicle position and damage with the account of the accident given by the claimant. Whilst a number of factors including the seatbelt, mobile phone, actions on first sight of the dog and when it ran out, were put forward as the reasons for dismissal the tribunal is persuaded that both Mr Hutton and Mr Latimer formed the belief that excessive speed was the actual cause of the claimant’s accident based on an inference drawn from the vehicle position and damage and this was the ground upon which they formed a belief of misconduct. It is not for an employer to carry out a forensic examination and to ensure that it is satisfied of the occurrence of an offence is beyond reasonable doubt, the test is reasonableness. To draw an inference that is reasonable to rely upon as a ground for making a decision, it is reasonable however that it be based on some objective evidence. In the circumstances of this case, in particular the administrative resources available to the respondent by way of individuals with some expertise in accident investigation and identification of causes, an absence of objective evidence as to the cause of the accident, and an employer with difficulty reconciling the account given, the tribunal do not consider that it was within a band of reasonable responses for the respondent to proceed to make a decision at the stage it did without further enquiry and investigation as to the cause and to put to the claimant for comment any evidence revealed upon which the inference of speed might then reasonably be drawn before proceeding to make a decision based thereon. Mr Latimer stated that a factor in the decision to dismiss the claimant was that his mobile phone was not diverted to voicemail; he did not however put to the claimant at any point the allegation that his mobile phone was not diverted to voicemail contrary to policy for comment. The tribunal find that the procedure by which the respondent’s decision was reached was outside a ‘range of reasonable responses’ of a reasonable employer and that the ‘Burchell’ test has not been met.

Was the misconduct in question a sufficient reason for dismissing the employee?

65. The tribunal is not satisfied that for the misconduct in question the penalty of dismissal fell within the range of reasonable responses which a reasonable employer might have adopted in the circumstances. Documentation issued to the claimant in the course of his employment did not state that an employee would be subjected to disciplinary action for failure to wear a seatbelt. It was not the respondent’s practice to dismiss employee’s for a failure to wear a seatbelt. No clear warning was given to the claimant that failure to perform in accordance with driver training expected standards and behaviours could result in summary dismissal. No warning was given in documentation issued to the claimant that whilst a vehicle is in motion, all hand held phones should be turned off, or diverted to voicemail and failure to do so would result in disciplinary action. The claimant had a clear disciplinary record for his twelve years of service prior to this incident. Whilst an employer is not expected to set out an exhaustive list of examples of what might constitute gross misconduct the tribunal is not persuaded that guidance given to the employee in the drivers manual and conduct code and the example of gross misconduct set out in the conduct code and relied upon, that is, deliberate disregard of a health and safety instruction, was sufficiently explicit so as to operate as a warning such that it was then reasonable for a first offence to summarily dismiss the claimant at worst for the combination of conduct put forward of failure to wear his seatbelt, failure to react in accordance with expected driving standards and behaviours and for having his mobile phone switched on while driving or not diverted to voicemail, nor is the tribunal persuaded that it was so well known to the claimant that this conduct could warrant dismissal such that an explicit warning was not necessary.

66. The tribunal find that the respondent did not act reasonably in treating the conduct of the claimant as a sufficient reason for the dismissal.

67. The tribunal accordingly find that in the circumstances including the size and administrative resources of the respondent’s undertaking the respondent acted unreasonably in treating misconduct as a sufficient reason for dismissing the claimant determined in accordance with equity and the substantial merits of the case and that his dismissal was unfair contrary to Article 130 of the 1996 Order.

LAW RELEVANT TO REMEDY

68. Remedies for unfair dismissal where the grounds of a complaint are found to be well-founded are an order for reinstatement, or re-engagement, and otherwise compensation and are dealt with in Articles 145 – 167 of the 1996 Order.

69. Under Article 150 of the 1996 Order , in exercising its discretion under Article 147 to make an order for reinstatement or re-engagement, the tribunal shall first consider whether to make an order for reinstatement and in doing so shall take into account- (a) whether the complainant wishes to be reinstated, (b) whether it is practicable for the employer to comply with an order for reinstatement, and (c) where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his reinstatement.

70. Article 148 of the 1996 Order sets out matters which shall be specified in an order for reinstatement.

FACTS FOUND RELEVANT TO REMEDY

Having made a decision on liability the tribunal find the following facts for the determination of remedy only:

71. The claimant wishes to be reinstated.

72. The tribunal considered the claimant to be honest and credible in his evidence and find that:

· Whilst the claimant was not wearing his seatbelt at the time of the accident, he was under the honest impression that he was permitted to do so when travelling a short distance between journeys and was not aware that he could be subject to disciplinary action in respect of this.

· The claimant’s mobile phone, if not answered when it rings, automatically diverts calls to voicemail.

· The claimant was not aware that he could be subject to disciplinary action for a failure to have his mobile switched off or diverted to voicemail when driving.

· At the time of his accident the claimant was driving within the national speed limit on a road to which the national speed limit applies.

· Between his return to work on 9 May 2011 and his dismissal the claimant performed duties in the respondent’s local district office, he was not formally removed from driving duties and on occasion during this time he made a number of deliveries for the respondent using his own car.

In light of the above, for the purpose of assessing remedy only, the tribunal is not persuaded that the claimant deliberately disregarded health and safety procedures or instructions.

73. The claimant made reasonable efforts to find work following his dismissal and received job seekers allowance until he was certified by his GP as unfit for work due to back pain on 2 September 2011, after which he received incapacity benefit. The claimant has remained unfit for work since September 2011 and was most recently certified by his GP as unfit for work due to chronic back pain on 26 January 2012 for twenty-six weeks although he expressed at hearing the hope that he would be sufficiently fit for work within 13 weeks.

74. It was agreed that the claimant but for his dismissal to the date of hearing had lost 11 weeks full pay at £279 per week, 13 weeks at full sick pay of £279, 2 weeks at half sick pay of £139.50 and 7 weeks at SPPR of £98.79. The claimant’s ongoing loss is SPPR of £98.79 per week.

75. But for his dismissal the claimant would have been paid a £600 productivity bonus on 1 August 2011, and had an annual contribution paid by the respondent into his pension fund at 17.1 % of his gross annual salary, it was agreed the pro-rata amount to make up the respondent’s contribution to February 2012 would be £2656.83.

APPLYING LAW TO FACTS RELEVANT TO REMEDY

76. No evidence was presented to the tribunal by the respondent that it was not practicable for the respondent to comply with an order for reinstatement, save reference made by Mr Hutton in his evidence as to why he did not consider giving the claimant a warning rather than dismissing him for a first offence, that this was because he had ‘lost confidence and trust in him’. Submissions were made on behalf of the respondent that because of the nature of the charge against the claimant it was the respondent’s view that the claimant’s disregard of health and safety and their trust, that it would not be possible for them to trust the claimant to drive for them. In respect of causation it was submitted for the respondent that the claimant, had he adhered to all health and safety procedures and protocols, that he would not have been dismissed. The tribunal is not persuaded that the claimant’s conduct was a deliberate disregard by him of health and safety procedures and instructions such that the respondent can no longer be expected to trust the claimant, or that his reinstatement is not practicable or unjust.

77. In accordance with the claimant’s wishes the tribunal therefore orders reinstatement of the claimant on 31 May 2012. The respondent shall pay to the claimant compensation of £9,847.17 made up of £7,666.53 in respect of arrears of pay between the effective date of termination and date of hearing, £2,180.64 in respect of sick pay between the date of hearing and date of reinstatement and £600 productivity bonus as paid to employees in August 2011. The parties may seek to agree between them to vary the date of reinstatement provided and to adjust the amount of compensation due up to it accordingly. The respondent shall restore all rights and privileges including seniority and pension rights to the claimant, in particular the respondent shall pay into the claimant’s pension fund £2,656.83 to make up the employer’s annual pension contribution at 17.1 % of gross annual salary for the period between the effective date of termination and February 2012 and indemnify the claimant in respect of any employee contribution or charges payable for his re-admittance to the respondent’s pension scheme.

78. Submissions were made in the context of the consideration of a compensatory award, that the tribunal reduce it to take into account the claimant’s contribution to his dismissal. The tribunal may reduce the arrears of pay for any contributory conduct found. The tribunal for determination of the matter of remedy has found that the claimant was under the honest impression that an exemption applied and was not aware that failure to wear his seat belt between short delivery distances was against policy and could result in disciplinary action; that the claimant’s phone, whilst on, if unanswered diverted automatically to voice mail; that the claimant was not aware that failure to switch off his phone or divert it to voicemail while driving could result in disciplinary action and on his return to work the claimant was not formally removed from driving duties and delivered some items using his own car. Based thereon, the tribunal is not persuaded to make any finding of contributory conduct by the claimant by way of a deliberate disregard of health and safety procedure by him. No reduction in the arrears of pay is accordingly appropriate for contributory conduct.

RECOUPMENT

79. The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996 and your attention is drawn to the attached notice:


(a) Monetary award	£9,847.17
(b) Prescribed element	£7,666.53
(c) Period to which (b) relates:	10 June 2011 – 9 February 2012
(d) Excess of (a) over (b)	£2,180.64

CONCLUSION

80. The tribunal find that claimant has been unfairly dismissed contrary to Article 130 of the 1996 Order. The respondent shall reinstate the claimant to his post on 31 May 2012 and shall pay to him compensation of £9,847.17 made up of £7,666.53 arrears of pay between the effective date of termination and date of hearing, £2,180.64 in respect of pay between the date of hearing and date of reinstatement and £600 productivity bonus as paid to employees in August 2011. The respondent shall restore all rights and privileges including seniority and pension rights to the claimant, in particular the respondent shall pay into the claimant’s pension fund £2,656.83 to make up the employer’s annual pension contribution at 17.1 % of gross annual salary for the period between the effective date of termination and February 2012 and indemnify the claimant in respect of any employee contribution or charges payable for his re-admittance to the respondent’s pension scheme.

81. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1996.

Chairman:

Date and place of hearing: 31 January and 9 February 2012, Belfast.

Date decision recorded in register and issued to parties:

Case Ref No: 1972/11

CLAIMANT: Adrian Nugent

RESPONDENT: Royal Mail Group Limited

ANNEX TO THE DECISION OF THE TRIBUNAL

STATEMENT RELATING TO THE RECOUPMENT OF JOBSEEKER’S ALLOWANCE/INCOME –RELATED EMPLOYMENT AND SUPPORT ALLOWANCE/ INCOME SUPPORT

1. The following particulars are given pursuant to the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996; The Social Security (Miscellaneous Amendments No.6) Regulations (Northern Ireland) 2010.

	£
(a) Monetary award	£9,847.17
(b) Prescribed element	£7,666.53
(c) Period to which (b) relates:	10 June 2011 – 9 February 2012
(d) Excess of (a) over (b)	£2,180.64

The claimant may not be entitled to the whole monetary award. Only (d) is payable forthwith; (b) is the amount awarded for loss of earnings during the period under (c) without any allowance for Jobseeker’s Allowance, Income-related Employment and Support Allowance or Income Support received by the claimant in respect of that period; (b) is not payable until the Department of Social Development has served a notice (called a recoupment notice) on the respondent to pay the whole or a part of (b) to the Department (which it may do in order to obtain repayment of Jobseeker’s Allowance, Income-related Employment and Support Allowance or Income Support paid to the claimant in respect of that period) or informs the respondent in writing that no such notice, which will not exceed (b), will be payable to the Department. The balance of (b), or the whole of it if notice is given that no recoupment notice will be served, is then payable to the claimant.

2. The Recoupment Notice must be served within the period of 21 days after the conclusion of the hearing or 9 days after the decision is sent to the parties (whichever is the later), or as soon as practicable thereafter, when the decision is given orally at the hearing. When the decision is reserved the notice must be sent within a period of 21 days after the date on which the decision is sent to the parties, or as soon as practicable thereafter.

3. The claimant will receive a copy of the recoupment notice and should inform the Department of Social Development in writing within 21 days if the amount claimed is disputed. The tribunal cannot decide that question and the respondent, after paying the amount under (d) and the balance (if any) under (b), will have no further liability to the claimant, but the sum claimed in a recoupment notice is due from the respondent as a debt to the Department whatever may have been paid to the claimant and regardless of any dispute between the claimant and the Department.