Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 1183/16IT

 

 

 

CLAIMANT: Ronan Smyth

 

 

RESPONDENT: Royal Mail Group Limited

 

 

DECISION

 

The decision of the tribunal is as follows:

 

(1)           The claimant was not subjected to unlawful direct disability discrimination and there was not a failure to make reasonable adjustments, and

 

(2) The claim of unfair dismissal is dismissed.

 

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge Knight

 

Members: Mr R McKnight

Mr I Rosbotham

 

 

Appearances:

 

The claimant was represented by Mr B Mulqueen, Barrister-at-Law, instructed by O'Hare Solicitors.

 

The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Carson McDowell Solicitors.

 

THE CLAIM

 

1.          The claimant's claim was that he was unfairly dismissed for a reason connected with his disability and in so doing the respondent subjected him to unlawful discrimination on the grounds of his disability and further, discriminated against him by failing to make reasonable adjustments for him.

 

2.          The respondent contended that the claimant was dismissed for gross misconduct because he had breached relevant provisions of the Royal Mail Group Conduct Agreement and that the dismissal was not connected with the claimant's disability.

 

 

 

THE ISSUES

 

3.          The parties agreed that at all times relevant to these proceedings the claimant was a disabled person within the meaning of the Disability Discrimination Act 1995 as amended.

 

4.          The issues in this case were therefore as follows:

 

(1)           Whether the claimant was dismissed for a potentially fair reason pursuant to Article 130 of the Employment Rights (NI) Order 1996; and if so,

 

(2)           Did the respondent act reasonably in all the circumstances in treating that reason as sufficient to justify dismissing the claimant.

 

(3)           Did the respondent dismiss the claimant because of his disability?

 

(4)           Did the respondent make reasonable adjustments for the claimant:

 

(a)        During the disciplinary process

 

(b)        Prior to taking the decision to dismiss the claimant.

 

(5)           What was the provision, criterion or practice that was applied to the claimant by the respondent?

(6)           Who were the claimant's comparators?

 

(7)           What was the nature and extent of the disadvantage, if any, suffered by the claimant?

 

(8)           If the claimant is successful in any of the claims the level of damages to be awarded.

 

SOURCES OF EVIDENCE

 

5.          The claimant gave written and oral evidence on his own behalf. By way of reasonable adjustment for his disability determined at a Case Management Review prior to the Hearing, the claimant gave his evidence in sessions lasting for 30 minutes with a 10 minute break in between each session. Also for the claimant Dr Tanya Kane Consultant Psychiatrist prepared written reports dated 11 October 2016 and 3 March 2017 respectively and gave oral evidence and Ms Nicola Niblock Chartered Accountant prepared reports dated 1 February 2017 and 28 March 2017 respectively and gave evidence concerning alleged pension loss.

 

6.          For the respondent, the tribunal received written and oral evidence from Mr Sean Heekin, Lurgan Manager in the Craigavon Delivery Office and the claimant's direct line manager and who carried out the fact finding interviews; Ms Cherylle Fleming, Delivery Office Manager who dealt with the Formal Conduct meeting and took the decision to dismiss the claimant and Mr Phil Hulme, Appeals Manager within HR Services who dealt with the claimant's appeal against dismissal.

 

7.          The respondent also presented a report dated 30 January 2017 from Dr Fred Brown Consultant Psychiatrist. Dr Brown did not attend to give evidence.

 

8.          The tribunal had regard to the documentation to which it was referred from the bundle of documents and further documents produced during the course of the Hearing.

 

FINDINGS OF FACT AND CONCLUSIONS

 

The tribunal found the following relevant facts proven on a balance of probabilities:

 

9.          The claimant was employed by the respondent in the Craigavon/Lurgan Delivery Office as a Postal Worker (Operational Postal Grade) from 7 January 2002 until his dismissal for gross misconduct on 11 January 2016. Prior to this he had a clear disciplinary record.

 

10.       From October 2008 Mr Sean Heekin was the claimant's line manager and Lurgan Manager of the Craigavon Delivery Office. His Line Manager is Ms Cherylle Fleming Delivery Office Manager.

 

11.       By the time of the Hearing, it was accepted by the parties that at all relevant times the claimant had a disability, a mental impairment, within the meaning of the Disability Discrimination Act 1995 as amended. The claimant has suffered from intermittent difficulties with low mood and anxiety as a result of multiple stressors since around 1995. In 2012 the claimant suffered from stress related episodes and was diagnosed with depression and anxiety. He was prescribed anti-depressants. During the claimant's employment the respondent was aware of the claimant's personal difficulties and the fact that he was taking antidepressant medication. The claimant's line manager was sympathetic towards him and aware of his need to take time off work from time to time when he was feeling stressed. It appears to the tribunal that during the claimant's employment neither the claimant nor the respondent realised that he had a "DDA disability". The claimant himself did not consider that his medical condition adversely affected his ability to carry out his duties.

 

12.       The claimant took time off work from 14 until 24 October 2015 due to "domestic stress" following the separation from his wife and leaving the family home. The claimant's return to work interview conducted by Mr Heekin on 27 October 2015 records that the claimant was coping with work "OK, still a lot on mind but work was OK yesterday". The return to work interview form which Mr Heekin went through with the claimant includes Question 4: "Is everything all right now OR do you see this illness/condition causing you problems that may affect your ability to attend regularly? [Prompt: Identify ongoing treatment/explore what action you and they can take to limit the need for time off due to a disability or potential disability consider OHS referral to advise on further adjustments or review existing arrangements]." The claimant's response to this was "Can't say, don't think so". Mr Heekin advised the claimant of the Royal Mail helpline - Feeling First Class which the claimant said he did ring but did not find helpful.

 

13.       The claimant told the tribunal that he did not feel fully fit at this point but felt that the structure of work would assist with his recovery and help him cope with the stressors in his life at that time.

 

14.       The claimant's duties included sorting, preparing and delivering mail to customers, scanning items and obtaining signatures from customers for delivered items when required. He was also responsible for the security of Special Delivery items which are insured up to a value of £10,000.00 and guaranteed to be delivered to the addressee before either 9.00 am or 1.00 pm. This is the respondent's premium product and the respondent may be liable to pay compensation to customers where the guaranteed delivery time is not met.

 

15.       The respondent's Conduct Agreement agreed with Unite and CWU, provides that: " The responsibility for avoiding delay to the mail and giving it prompt and correct treatment is one of the most important duties of all Royal Mail Group employees". During the Hearing it became clear that an earlier version of the Conduct Agreement had been included in the agreed Bundle of Documents in error. The tribunal was satisfied that at all material times an electronic version of the "New" conduct agreement was used by the respondent in its dealings with the claimant at the relevant times. The Conduct Code provides that Delay to Mail "may be treated as:

 

•          Unintentional delay

•          Unexcused Delay

•          Intentional Delay"

 

16.       The Code provides further guidance in relation to each of these categories of delay. In the case of "unintentional delay" it is recognised that "genuine mistakes and misunderstandings do occur" and it is not intended that such cases should be dealt with under the Conduct Policy beyond informal discussions for the isolated instance.

 

17.       "Unexcused delay" is defined as "various actions" for example "carelessness or negligence leading to loss or delay of customers' mail, or breach or disregard of a standard or guideline". The Code provides that such instances are to be distinguished from intentional delay although they may also be treated as misconduct and dealt with under the Conduct Policy and outcomes may range "from an informal discussion to dismissal".

 

18.       "Intentional delay" is classed as gross misconduct which, if proven, could lead to dismissal. The test to determine whether actions may be considered as intentional delay, is whether the action taken by the employee was knowingly deliberate, with an intention to delay mail. Where proven, such breaches of conduct can lead to dismissal, even for a first offence; indeed intentional delay is a criminal offence and can result in prosecution."

 

19.       The Conduct Agreement sets out the process to be followed in cases where there is an alleged disciplinary offence.

 

20.       The claimant confirmed to the tribunal that he was aware of and fully understood the duties and obligations upon him with regard to the delivery of mail and the process for delivering Special Delivery items.

 

21.       The events which led to the claimant's dismissal occurred on 18 November 2015. The claimant started his shift around 7am and signed his duty sheet for that day. He told the tribunal that he felt under "pressure" to discover that his delivery partner that day was Aaron Martin, a colleague with whom he had had a previous disagreement, and that they would have to go out in the van together to complete their deliveries. He said that he felt hurt that Mr Heekin who was off that day would have put him with Mr Martin, who had apparently made it known that he did not wish to work with the claimant. Mr Heekin told the tribunal that the duty rota had been posted the previous Friday and the claimant did not raise any issue with him. Mr Brankin, who was standing in that day for Mr Heekin, apparently was unable to explain why this had happened. The claimant nevertheless decided to carry on and did not mention to Mr Brankin about feeling under pressure. He told the tribunal he did not feel he could confide in him. The claimant prepared his duty which included 5 special delivery items and loaded the van and then went out with Mr Martin in the van to do the deliveries. The two men did not speak to each other and did not take any breaks to get the delivery done as quickly as possible. On arriving back at the delivery office at around 2.25pm it was discovered that the claimant had forgotten to deliver a Special Delivery item that had to be delivered before 1.00 pm to a customer on his delivery "loop".

 

22.       The claimant told Mr Brankin at around 2.25 pm that he had not noticed the item and asked him if he could get the parcel delivered. Mr Brankin informed the claimant that it was his responsibility to deliver the item as soon as possible. The claimant did not mention to Mr Brankin that he had felt uncomfortable having been partnered with Mr Martin. He then went to his locker and requested his hand held Postal Digital Assistant ("PDA") from Mr Colin Mallon the Postal Higher Grade ("PHG") on duty. The claimant then signed for the item himself on the PDA using the addressee's name. He took the item out to the delivery address using his own car. On finding no one in at the delivery address, he left the item with a neighbour. The claimant then went on home.

 

23.       The claimant accepted that he had acted in contravention of the Conduct Code in that he should not have signed for the item himself on his PDA, that he should not have used his own car to make the delivery and that he should not have left the item with a neighbour. He told the tribunal that this was an "error of judgment" and a "mistake" on his part. The tribunal did not accept the claimant's suggestion that there were other instances of which the respondent was aware in which private cars were used by employees to make deliveries and sometimes this practice was openly encouraged by the respondent. The claimant also suggested that the security of the mail had not in fact been compromised as the item had been received eventually by the correct recipient and the claimant through his own knowledge and experience knew that the neighbour with whom he left the item was trustworthy.

 

24.       Mr Brankin had seen the claimant on CCTV driving away from the delivery yard in his own car. He then spoke to Mr Mallon who told him that he had seen the claimant scanning an item and returning his PDA to the PHG locker. He also confirmed that the claimant had not picked up the keys to the Royal Mail delivery van. The following morning the Special Delivery item was on the system as having been delivered. Mr Brankin reported this to Ms Fleming and at her request, attended with the addressee who confirmed that the item had been received after initially being left with a neighbour. The sticker which states "Guaranteed for 1pm" had apparently been removed from the item. There was no complaint from either Amazon or the addressee.

 

25.       The next morning Mr Heekin was alerted by the Special Delivery quality report that there had been a failure to meet the 1.00 pm deadline for a special delivery item on the claimant's duty. He spoke with the claimant who told him that he had made
Mr Brankin aware of this and that the item had been delivered to the addressee, giving the impression that the matter had been sorted out satisfactorily. The claimant did not mention at this stage any problem with having been paired with Mr Martin or that he had felt under stress of any kind.

 

26.       Later that morning Ms Fleming informed Mr Heekin that she believed that the claimant had taken the special delivery item out in his own car and asked Mr Heekin to carry out an informal fact finding meeting with the claimant.

 

27.       Shortly afterwards Mr Heekin held the fact finding interview with the claimant. Ms McGuinness was present as a note taker. The claimant declined to have someone accompany him at the fact finding meeting. Mr Heekin asked him to explain the events surrounding the missed special delivery item the previous day. He did not tell the claimant that he had been seen leaving the yard in his own car or about the investigations carried out by Mr Brankin. The claimant told Mr Heekin that Aaron Martin had realised that the special delivery had been missed when they arrived back at the depot around 2.30 pm and that he had mistakenly thought the item was an "Amazon tracked" not "signed for". When he realised it was indeed a special delivery item, he spoke with "Jonny the manager on duty" who had told him it had to be delivered. The claimant said that he had "grabbed the keys from the locker" and that he went back out to deliver the item. As no one was in at the recipient's address he had left it with the neighbour at number 5. He informed Mr Heekin that he knew it was "not process" to deliver special delivery items to neighbours but it had "completely slipped my mind". He informed Mr Heekin that he had delivered the parcel after 3pm and that it was put into a PDA and signed for by the neighbour.

 

28.       Mr Heekin then told the claimant he had no option but to send the claimant home for a "cooling off period" as there were discrepancies between what he was being told by the claimant and other contradictory evidence. He stated that this was part of a "new conduct process". Mr Heekin informed the claimant that he was aware that his day off was Friday (20 November 2015) and that he had annual leave booked for Saturday (21 November 2015) so he would send out the "paperwork" to the claimant.

 

29.       In response to a request for clarification about what he should do in the cooling off period, Mr Heekin said he was not sure but confirmed that the claimant would be paid during the cooling off period and that the matter would go to a formal conduct process, if warranted. The claimant asked whether this would result in a warning and was informed that this would depend on the process and results from the conduct process. The claimant said that he would prefer to complete his delivery that day as it was a very busy day but Mr Heekin declined this offer. The notes of the fact finding meeting were sent out to the claimant by letter dated 20 November 2015 which were returned by the claimant on 25 November 2015 signed by him as an accurate account of the fact finding interview.

 

30.       The tribunal noted that the New Conduct Agreement makes reference to a cooling off period in the section which deals with the precautionary suspension where an employee who has refused to carry out a manager's instruction is to be given time to reconsider his or her actions rather than an automatic precautionary suspension. The Agreement provides: "A precautionary suspension should only be considered when a serious incident occurs or is reported to a manager. It is important that all cases of precautionary suspension only last as long as necessary..... In the first instance, the manager should meet with the employee to seek an explanation of the facts of the case. If the manager believes that the incident is serious and there is a reasonable belief that the serious breach might be repeated and/or there is a risk to people, property, mail or the good image of Royal Mail Group, then the manager should send the employee home." The tribunal did not consider that in sending the claimant home for a cooling off period that Mr Heekin had a correct understanding of the provisions of the Agreement.

 

31.       Mr Heekin met with Mr Colin Mallon on 20 November 2015 who confirmed that he had left the claimant's PDA on the counter at the claimant's request and that he had signed the van back in from the claimant at approximately 2.30 pm. He confirmed that the PDA was still on the counter and that he had replaced it in the cradle by approximately 2.45 pm.

 

32.       The claimant returned to work on 23 November but was informed that he was suspended from outdoor duties due to "risk to the integrity of the mail".

 

33.       Mr Heekin requested a further fact finding meeting with the claimant which was held on 24 November 2015 to discuss the discrepancies between what the claimant had told Mr Heekin at the first fact finding meeting and the other evidence gathered. This time the claimant was accompanied by his Trade Union Representative, Mr Alistair Pinkerton of the CWU. Ms McGuinness was again present as a note taker. The claimant suggested that when he had previously informed Mr Heekin that he had followed "due process", he was telling him "what he wanted to hear" and that he thought "that would have been the end of it but that was not what has happened". The claimant stated that he knew he should not have done what he did. He questioned why Mr Heekin had "let" him say what he had said, knowing what he already knew. The claimant then told Mr Heekin that he had felt under pressure that day and felt very uncomfortable when he realised that he was paired with Aaron Martin who had previously stated that he did not want to work with the claimant.

 

34.       The claimant admitted that, contrary to what he had previously said, he had in fact taken the special delivery out in his own car; that he had not taken the PDA with him but had scanned the item at the cage and signed for it himself using his own signature at approximately 2.45 pm and therefore what he had said about the neighbour signing for the item was untrue. When asked why he did not take the PDA and the van to deliver the item, the claimant said that he had finished his working day and "didn't want to take an extra hour to go out and deliver the item. My head wasn't right and I wasn't thinking". The claimant accepted that the delivery if carried out in the proper way could have been completed within the hour. The claimant stated that it was an "error of judgement" on his part to scan and sign for the item and that he had not told the truth previously because he was telling Mr Heekin "what he wanted to hear". Mr Pinkerton made representations that the claimant had "pressures on his personal life" and that at no stage was the item at risk. The claimant reiterated that he did not understand why Mr Heekin had "let him tell him these things" when he "had all of the right answers and had no reason to doubt them". He suggested that Mr Heekin had let him go down that route without him knowing that it had already been checked out. Mr Pinkerton enquired whether it would be possible for the claimant to go on gardening leave as he felt uncomfortable because colleagues were talking about him and the claimant stated that his head was "melted".

 

35.       The claimant also complained that there had been delay between being told to go off from work for a cooling off period and going back to work that he had been left uncertain about what was happening. The meeting lasted from 9.40 am until
10.04 am and the claimant signed the record of being a true account of the fact finding.

 

36.       Following this meeting Mr Heekin wrote to the claimant to inform him that he had referred the case to Cherylle Fleming for consideration of any further action as he considered the potential penalty to be outside of his level of authority. He advised that Ms Fleming would be in contact with the claimant shortly. He also reminded the claimant of the Feeling First Class support services contact number if he felt he required support in recognition that facing conduct action can be a stressful time.

 

37.       On 3 December 2015 Ms Fleming sent a letter inviting the claimant to attend a formal conduct meeting on 7 December 2015 "to discuss the failure to deliver (a special delivery item on 18 November 2015) on time, signing for the item yourself, taking the item out in your own private car and then leaving the item unsecure by delivering the item to a neighbour". The conduct notifications were identified as-

 

1.          Unexcused delay of mail.

 

2.          Failure to follow correct delivery procedures.

 

The claimant was informed of his right to be accompanied by a Trade Union Representative or a work colleague and that at the meeting he would be given an opportunity fully to explain his actions and present any evidence or points of mitigation in relation to his case before a decision was made. Ms Fleming enclosed details of the investigation and copies of relevant witness statements and guidance to explain what to expect at the meeting. Ms Fleming advised the claimant that she would take into consideration the claimant's conduct record which was at that time clear and that the formal notifications were being considered as gross misconduct and that if the conduct notifications are upheld one outcome could be his dismissal without notice.

 

38.       The conduct meeting took place on 7 December 2015 and the claimant was again accompanied by Mr Pinkerton of the CWU.

 

39.       Ms Fleming explained at the outset of the conduct meeting that the interview was taking place under the Conduct Code, that the charges of unexcused delay of mail and failure to follow correct delivery procedures were very serious and if the case was found against him he could face a decision up to and including dismissal. She stated that a decision would only be made after she had had the opportunity of completing her investigation based on the outcome of this interview and any further investigations that were required. Ms Fleming summarised the information that she had on file concerning the events which occurred on 18 November 2015 and at the fact finding interviews. The claimant confirmed that he was aware of the mails' integrity and the processes of delivering the premium product special delivery. The claimant confirmed that he had overlooked the delivery of the item in question because he had mistakenly thought it was an Amazon Deliver Scanned item and he had not used his Aide Memoire. When asked why he had taken the item out in his private car the claimant stated that this had been an "error of judgment, he had a rough day and was under a lot of domestic stress. Also on that day he was under work related stress because of the poor working relationship with Aaron Martin and because he had not taken a break due to feeling uncomfortable with his van share partner. He stated that he had not been thinking straight.

 

40.       It was put to the claimant that he signed for the item on his PDA himself using the customer's name, that he took the item out in his own car and then left the item with a neighbour. The claimant agreed that this was accurate and with hindsight that he should have done things differently. He suggested that he would have done things differently and followed the correct procedure if he had had a different partner. The claimant stated that he had given an untrue account initially because he thought this would "put the matter to bed". He was shown the signature and asked why he had signed for the item and typed in the name Kxxxx. He said that he was not thinking straight. He was shown a photograph of the item with part of the barcode missing. The claimant denied that he had damaged the barcode and surmised that this may have been damaged by the neighbour with whom he had left the item. He stated that the barcode had not been damaged when he had scanned the item.

 

41.       The claimant stated that he was sorry and that this job was giving his life structure. He informed Ms Fleming that his mother had recently passed away, he was the sole carer for his wife who was unwell and had recently been diagnosed with MS and that his marriage had recently broken up. The claimant said that Christmas was a very stressful time that he had called the Feeling First Class helpline and had arranged a further appointment for counselling. He advised that he had been taking anti-depressants for approximately 1½ years which were helping him to cope. He stated that this incident would not have happened approximately year ago and that he had 14 years' service and if given the opportunity it would not happen again.

 

42.       Mr Pinkerton requested clarification in relation to the charge of unexcused delay of mail as he said he was aware of three previous occasions where people had been "counselled". He reiterated that the claimant had been through a lot both personally and work in the last 12 months and praised Mr Heekin as having been supportive in his role of the claimant's Line Manager. He also acknowledged the seriousness of the claimant signing for the item himself and leaving it with a neighbour. The claimant said that he loved his job, was well thought of by the customers on his delivery and could not apologise enough for what he had done. The meeting ended and Ms Fleming advised that she would aim to send out the notes by the end of the week. The notes of the meeting were written up and sent out to the claimant by letter dated 15 December 2015. The notes were signed and returned by the claimant on
16 December 2015.

 

43.       Following the conduct meeting Ms Fleming spoke with John Brankin and Colin Mallon about the events on 18 November 2015. Ms Fleming wrote to the claimant on 6 January 2016 inviting the claimant to a notification of the outcome meeting to take place on Monday 11 January 2016. The claimant's complaint to the tribunal included the length of time between the date of the conduct meeting and being notified of the outcome. The claimant approached Mr Heekin to ask about when he might hear about the outcome. Mr Heekin explained that it was out of his hands. Ms Fleming informed Mr Pinkerton that there was no provision for the claimant to go on gardening leave. The claimant stated that waiting for the outcome was stressful but he declined to go on sick leave as suggested by his trade union representative because he feared this would have an adverse effect on the outcome of his case. The claimant attended with his GP and it is recorded that the claimant informed his doctor that he felt he was having "a breakdown". The claimant's GP referred him to the mental health unit at Trasna House where he was seen on Wednesday 23 December 2015.

 

44.       The explanation given for the delay was that this was a busy time of year and also that Ms Fleming went on annual leave between 24 December 2015 and 4 January 2016. Further the claimant himself was then on annual leave from 4 January 2016 until 11 January 2016.

 

45.       On Monday 11 January 2016 the claimant attended a meeting with Ms Fleming who informed him that she had found that he was guilty of gross misconduct namely:

 

(1)        An excused delay to mail in that you failed to deliver a special item within the product specification timescales.

 

(2)        That you failed to follow correct delivery procedures for the special delivery item by signing for the item yourself, taking the item out in your own private car and then leaving the item unsecured by delivering the item to a neighbour.

 

Her decision was to dismiss the claimant without notice. While taking into account that he had a clear record of continuous service over 14 years she did not consider a lesser penalty to be appropriate given the seriousness of the offences and the breakdown of trust and confidence.

 

46.       Ms Fleming set out her findings, deliberations and decision in her Decision Report. Having concluded that the two conduct notifications had been upheld she considered what penalty would be appropriate. She reviewed Mr Smith's conduct record which was currently clear and his length of service with the business. She set out the expectation of the Royal Mail Group that employees should act with honesty at all times, use sound judgement and take personal accountability for workplace actions. She did not accept with his experience that the claimant was in any doubt that the actions he followed were wrong and against procedure. She found that the claimant deliberately tried to cover up his actions by being dishonest when he was initially spoken to about the incident. She considered the personal issues advanced by the claimant in mitigation might explain him initially overlooking the item, she considered that the claimant had still carried out a premediated act by signing for the item himself in the office, taking it out in his own car and leaving it with a neighbour contrary to operational procedures of which he was aware. She considered that the claimant's actions had caused the mail to fail delivery specification to customers which had the potential to damage the reputation of Royal Mail and its brand. She felt that both of the conduct specifications amounted to gross misconduct and that the seriousness of the offence combined with the breakdown of trust and confidence and Mr Smith warranted summary dismissal with effect from 11 January 2016.

 

47.       The claimant was given the decision letter and a copy of the report at the meeting on 11 January 2016. He was informed of his right to appeal and he immediately gave notice of his intention to exercise that right. The claimant's appeal was stated by him to be "against my dismissal on the grounds of that (sic) your decision to dismiss me having explained my mitigating circumstances has not been taken into consideration plus my 15 year service with a clean disciplinary record".

 

48.       The claimant submitted a letter from his GP, Dr Watt dated 19 January 2016 in support of his appeal which stated:-

 

"To whom it may concern

 

Rowan is a patient at Church Walk Surgery and has attended recently with symptoms of low mood stress, poor sleep and concentration.

 

Rowan is on Citalopram and in December this dose was increased in response to his symptoms and he was also prescribed Buspirone for anxiety.

 

He was referred to the community mental health team and has been attending there regularly.

 

His mother died in January 2015 and he found this very difficult.

 

I hope this information is helpful and will be taken into account for his appeal".

 

49.       The claimant also submitted a letter dated 1 February 2016 from Kathleen Lee, a Community Psychiatric Nurse at Trasna House which stated:-

 

"Mr Smith was referred here by his GP into mental health services due to his mood deteriorating as a result of pressures in his life over the past one to two years i.e. the death of his mother and his marriage breakup having been married for 21 years. These issues have had significant impact on his mental health and he has been prescribed medication which was increased by his GP. I assessed Mr Smith's mental health and he will need continued support for the foreseeable future, after which group support may need to be the next step".

 

50.       The appeal was conducted by Mr Philip Hulme, an Appeals Casework Manager based at the Chorley Delivery Office who had no previous involvement with the claimant's case. Mr Hulme wrote to the claimant on 3 February 2016 notifying him that arrangements had been made to hear his appeal on 10 February 2016, of his right to be accompanied by a Trade Union Representative or work colleague and enclosing a bundle of documentation associated with his appeal and an information sheet relating to the appeal.

 

51.       The claimant attended the appeal meeting accompanied by Mr Norrie Watson, a full time official employed by the CWU. Mr Hulme explained to the claimant that his role was to rehear the case and make an independent decision. He informed the claimant that he could present any new evidence previously unheard which where required would be investigated. Mr Hulme confirmed with the claimant that he and his Trade Union Representative had received a full set of appeal papers and that additionally he would take into account the letters from Dr Watt and CPN Lee. At the outset Mr Watson queried the reference to a cooling off period during the first fact finding interview and contended that there was no such terminology with regards to the conduct procedures. He stated that this should have been referred to as the claimant being sent home.

 

52.       At the appeal the claimant confirmed that he had typed the name "Kelly" on the PDA but said that he had signed his own name. He stated that he had been doing his walk for 11 years, he knew the community and the customers and he had known that the item would be safe when he had left it with a neighbour. He confirmed his duty times to be 7.00pm to 2:48pm. The claimant was asked about the comment in the formal interview that this had happened before and that the individuals had received counselling. The claimant was asked to explain who these individuals were. The claimant advised that it was Mr Pinkerton and not he who had said this and that
Mr Pinkerton would have been aware of the other cases. He said he was personally aware of one colleague who had failed to deliver three special deliveries which had resulted in him to being the butt of some jokes.

 

53.       Mr Watson submitted on behalf of the claimant that he had 14 years unblemished service. He knew the area and lived only a couple of hundred yards away from the address in question and that his only intention had been to get the item to the customer rather than bringing it back to the office. He submitted that this was just an error of judgement and that the medical evidence presented demonstrated that the claimant had had a "rough 2 years".

 

54.       The claimant then provided more detail with regard to the impact of this upon him. He apologised for his error but stated that there had been circumstances both outside and inside work. In 2012 his mother had been diagnosed with motor neurone disease and his wife with transverse Myelitis. He was effectively the sole carer for his father who has a heart condition and consequently had been diagnosed with depression. His mother passing away in January 2015 had a "massive impact" upon him and 3 months later his wife was diagnosed with MS and was barely coping. In August 2015 his wife had received a poison pen letter alleging that he was having an affair and his marriage had broken down in October 2015. He had found Mr Heekin to be supportive as his line manager who he described as "a brick". He had taken two weeks off work and this had happened within two weeks of his return. He stated on the morning of the incident on 18 November 2015 he was put under pressure by being paired with Mr Martin and that they had wanted to get their work done quickly, doing the delivery in silence without any break and consequently he had overlooked the item. He stated that he loved his work and implored Mr Hulme to look on his case sympathetically. The job gave him structure and he was also trying to get back with his wife through Relate. He stated on any other occasion he would have taken the van and it was just the pressure of this particular day. Mr Watson stated that the claimant had not acted intentionally and while the claimant's actions deserved "conduct this isn't dismissal". The meeting concluded at 11:40 am.

 

55.       Following this meeting, Mr Hulme spoke to Mr Brankin, Mr Heekin and Ms Fleming. He issued his decision letter dated 11 March 2016 to the claimant. The decision was that the claimant had been treated fairly and reasonably and that the original decision of dismissal was appropriate in this case. He advised that the appeal was rejected and that the penalty of dismissal stood. He enclosed with that letter a copy of his report setting out his deliberations and conclusions. He concluded that there was no doubt that Mr Smith understood the process for delivering special delivery items and that scanning the item prior to it being delivered was a misrepresentation of the information provided to the posting customer. He further concluded that there would have been time within the duty to deliver the item and return in an official vehicle and that the claimant would have known that he should not have used his own vehicle. Further the claimant knew that the item should not have been left anywhere other than at the address on the item regardless of the fact that the claimant believed the neighbour to have been trustworthy. In these circumstances Mr Hulme included that the dismissal was clearly justifiable.

 

56.       Mr Hulme rejected the claimant's assertion that he had signed his own name and concluded that the claimant had attempted to sign the addressee's name, consequently further eroding confidence in the claimant's integrity. Mr Hulme concluded that whilst appreciating that the claimant had experienced some considerable personal difficulties this was not an instance of lacking concentration or forgetfulness, neither was there any suggestion that he needed to be home at a particular time. He concluded that the claimant had instead repeatedly and deliberately ignored security standards, therefore did not believe that any personal difficulties served to mitigate his failure in the manner he had done. Mr Hulme did not see how any potential issue with Mr Martin could explain or mitigate the claimant's decision to repeatedly ignore appropriate security standards. He agreed with Ms Fleming's assertion that there had been a series of deliberate breaches of standard involving what was a premium product which in isolation could be considered sufficiently serious to represent consideration of action under the conduct code.

 

57.       He agreed with Ms Fleming further that the claimant had compounded this through initially blatantly telling lies in the fact finding interview and that as a consequence she had lost all confidence in Mr Smith delivering the mail to the necessary standard and therefore that the dismissal was appropriate. He agreed that this was not an isolated incident of breaching security standards nor that the claimant's behaviour was indicative of having been an oversight or forgetfulness. He agreed with
Ms Fleming that this was a series of deliberate acts which the claimant clearly understood were inappropriate. This was then compounded by him initially misleading the fact finding interview and at appeal suggesting that he had signed his own name. He confirmed that the Code of Business Standards details the standards of business and personal behaviour expected from all employees; "Royal Mail requires all employees to take responsible approach to their work, customers and fellow employees, to maintain standards of conduct appropriate to their role and to follow the instructions of their manager". In explaining gross misconduct the conduct code states "Some types of behaviour are so serious and so unacceptable if proved as to warrant dismissal without notice". One of the examples cited could be considered as grounds for gross misconduct is "deliberate disregard of health, safety and security procedures or instructions". Mr Hulme concluded that the necessary trust and confidence required of any employee had been fundamentally undermined and that the claimant's actions were of a sufficiently serious nature to merit consideration as gross misconduct. He did not believe that any action short of dismissal would have had the required corrective impact and therefore dismissal without statutory notice was a fully justifiable outcome. He confirmed that the appeal was rejected and the last day of service remained as 11 January 2016.

 

58.       At the Hearing it was accepted that the first charge of Unexcused Delay of the Mail had been incorrectly categorised as gross misconduct. Ms Fleming's evidence was that she had considered the charges globally and that the claimant's actions within the second charge did amount to gross misconduct which would have led to summary dismissal in any event. Mr Hulme accepted that this was an error on his part but that it did not make a difference to the outcome as the second charge was clearly gross misconduct.

 

59.       During the Hearing, the claimant gave evidence that his actions on 18 November 2015 and at the initial fact finding meeting, were due to a reaction to severe stress to the extent that he thought on that day he was having a "mental breakdown". He also informed Dr Kane that being paired with Aaron Martin left him feeling very stressed and that "my head was melted having to work with him." Consequently he told her that he had failed to follow Royal Mail protocol and that the following day he had confessed to his line manager the following day what had happened. In her report Dr Kane initially opined that it was likely that the claimant's depressive symptoms and anxiety affected his ability to carry out his job on 18 and 19 November 2015. However at the Hearing Dr Kane agreed with Dr Browne's opinion that "As regards whether Mr Smyth's medical condition contributed to his actions on 18 November 2015 and his subsequent failure to provide a respondent with an accurate account of his actions when questioned on 19 November 2015, Mr Smyth told me that he had felt under stress at that time. He also said that it was a known fact that actions such as his on 18 November 2015 happened every day. I consider it is possible that stress or depression may have contributed to his behaviour that day but I note that Mr Smyth believed that his behaviour on that day was within regular practice. I do not consider that his behaviour can be attributed solely to stress or depression. I do not consider that Mr Smyth's mental condition prevented him from providing the Respondent with an accurate account of his actions when questioned on 19 November 2015."

 

60.       The tribunal considered that the claimant's evidence at the tribunal was lacking in credibility and an attempt retrospectively to justify his actions which was at variance with the explanations advanced by him to the respondent during the investigatory and disciplinary hearings. The tribunal concludes that the claimant greatly exaggerated the adverse effects of being paired with Aaron Martin. If the claimant had been as adversely affected as he claimed, the tribunal would have expected him to have at least mentioned this at some stage during the investigatory and disciplinary process and to have reported it to his trade union representatives. The claimant did not attend with his GP until 15 December 2015 by which date he was waiting for the outcome of the disciplinary hearing.

 

61.       The claimant lodged his originating claim dated 6 April 2016 with the Office of the Tribunals complaining that he was unfairly dismissed and that he was subjected to unlawful disability discrimination, both direct and by reason of the failure to make reasonable adjustments for him. These complaints were denied by the respondent.

 

THE LAW

 

Disability Discrimination

 

Direct Discrimination

 

62.       Section 3A(5) of the Disability Discrimination Act 1995 as amended ("the 1995 Act") prohibits direct discrimination. It provides:-

 

"A person directly discriminates against a disabled person if, on the ground of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities are the same as, or not materially different from, those of the disabled person."

 

Direct Discrimination occurs where a person's disability is the reason for the less favourable treatment. It cannot be justified.

 

 

63.       Section 4A of the 1995 Act imposes a duty to make reasonable adjustments:-

"(1) Where -

 

(a) a provision, criterion or practice applied by or on behalf of an employer;

 

.... places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled,

 

it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to take in order to prevent the provision, criterion or practice, or feature, having that effect."

 

64.       The factors to be taken into account by a court or tribunal in determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make a reasonable adjustment and a non-exhaustive list of examples of reasonable adjustments are set out at Section 18B of the 1995 Act. It is for the tribunal to decide whether something is a reasonable adjustment, objectively, on the facts of the particular case. ( See : Smith v Churchill Stairlifts PLC [2006] IRLR 41 CA.)

 

Also, the making of a reasonable adjustment does not lead to the situation where everything remains the same for a claimant. Taylor v Dumfries & Galloway CAS [2007] SLT 425.)

 

The duty to make reasonable adjustments is extremely wide in scope. This is clear from the judgment of Baroness Hale in Archibald v Fife Council [2004] IRLR 65.

 

Notwithstanding the width of this provision, it is clear that the duty to make a reasonable adjustment is not limitless. At p 659, Baroness Hale stated:-

 

"It is ... common ground that employers are only required to take those steps which in all the circumstances it is reasonable for them to have to take. Once triggered, the scope of the duty is determined by what is reasonable, considered in the light of the factors set out in Schedule 6(4) ..."

 

65.       Guidance was given to tribunals in the case of Environment Agency v Rowan [2008] IRLR (EAT) where His Honour Judge Serota stated, at paragraph 27, that a tribunal considering a claim that an employer has failed to make a reasonable adjustments must identify:-

 

"(a) the provision, criterion or practice applied by or on behalf of an employer; or

 

(b) the physical feature of premises occupied by the employer; or

 

(c) the identify of non-disabled comparators (where appropriate); and

 

(d) the nature and extent of the substantial disadvantage suffered by the claimant. It should be borne in mind that identification of the substantial disadvantage suffered by the claimant may involve a consideration of the cumulative effect of both the 'provision, criterion or practice applied by or on behalf of the employer and the physical feature of premises', so it would be necessary to look at the overall picture."

 

He continued:-

 

"In our opinion, an employment tribunal cannot properly make findings of a failure to make reasonable adjustments without going through that process. Unless the employment tribunal has identified the four matters we have set out above, it cannot go on to judge if any proposed adjustment is reasonable. It is simply unable to say what adjustments were reasonable to prevent the provision, criterion or practice, placing the disabled person concerned at a substantial disadvantage."

66.       The comparator may be actual or hypothetical and is someone who is not disabled, or who did not have the same disability as the claimant. ( London Borough of Lewisham v Malcolm [2006] IRLR 701 and the Disability Code of Practice (Employment and Occupation) Paragraphs 4.8 and 4.13.) Where there is no actual comparator the tribunal must identify the characteristics of the hypothetical comparator. However it is open to the tribunal to focus on the reason for the claimant's treatment; "...employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as (she) was. Was it on the proscribed ground which is the foundation of the application? Or was it for some other reason? If the latter the application fails. If the former, there will usually be no difficulty in deciding whether the treatment afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others." Per Lord Nicholls at Paragraph 11 Shamoon -v- Chief Constable of the RUC 2003 IRLR 285.

 

67.       In Igen Ltd (formerly Leeds Careers Guidance) and Others v Wong; Chamberlin Solicitors and Another v Emokpae; and Brunel University v Webster [2005] IRLR 258, the Court of Appeal in England and Wales set out in full guidance, which we do not repeat here, in an Annex to the judgment on the interpretation of the statutory burden of proof provisions in cases of sex, race, and disability discrimination.

 

68.       In summary, the claimant must prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent has committed an unlawful act of discrimination. The tribunal will also consider what inferences it is appropriate to draw from the primary facts which it has found. Such inferences can include inferences that it is just and equitable to draw from the provisions relating to statutory questionnaires, a failure to comply with any relevant Code of Practice, or from failure to discover documents or call an essential witness.

 

69.       If the claimant does prove facts from which the tribunal could conclude in the absence of an adequate explanation from the respondent that the latter has committed an unlawful act of discrimination, then the burden of proof moves to the respondent. To discharge that burden the respondent must show, on the balance of probabilities, that the treatment afforded to the claimant was in no sense whatsoever on a proscribed ground (here disability). The tribunal must assess not merely whether the respondent has proved an explanation for the facts from which inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that disability was not a ground for the treatment in question. Since the facts necessary to prove an explanation will normally be in the possession of a respondent, a tribunal will normally expect cogent proof to discharge the burden of proof.

 

70.       Although the above logically establishes a two-stage process, it is not to be applied slavishly or mechanically, and in deciding whether the claimant has made out a prima facie case the tribunal must put to one side the employer's explanation for the treatment, but should take into account all other evidence, including evidence from the employer. ( See : Laing v Manchester City Council [2006] IRLR 748 EAT; Madarassy v Nomura International Ltd [2007] IRLR 246; and Arthur v Northern Ireland Housing Executive and Anor [20070] NICA 25.)

 

71.       These cases were considered more recently by HM Court of Appeal in Northern Ireland in Curley v Chief Constable of the Police Service of Northern Ireland and Anor [2009] NICA 8 and Nelson v Newry & Mourne District Council [2009] NICA 24. In the former, Coughlin LJ at paragraph 16 of his judgment emphasised the need for tribunals hearing cases of this nature to keep firmly in mind that such claims are grounded upon an allegation of discrimination (in that case religious discrimination). This was re-emphasised by Girvan LJ at paragraph 24 of the judgment in the latter case.

 

72.       More specifically, in relation to the duty to make reasonable adjustments, the burden of proof was considered in Project Management Institute v Latif [2007] IRLR 579. In Harvey on Industrial Relations and Employment Law, the position is summarised as follows:-

 

"... [T]he EAT held that a claimant must prove both that the duty has arisen, and also that it has been breached, before the burden will shift, and require the respondent to prove that it complied with the duty. There is no requirement for claimants to suggest any specific reasonable adjustments at the time of the alleged failure to comply with the duty; in fact it is permissible ... for claimants to propose reasonable adjustments on which they wished to rely at any time up to and concluding the ... hearing itself."

 

73.       The Labour Relations Agency Code of Practice provides at Paragraph 12 that "When dealing with disciplinary issues in the workplace employers should bear in mind that they are required under the (1995 Act) to make reasonable adjustments throughout the disciplinary process to assist employees who have a disability. For example this may require the provision of wheelchair access, if necessary, or the provision of documents in Braille."

 

Unfair Dismissal

 

74.       Article 130 of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order") provides:-

 

"(1) 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 reasons (or if more than one the principal reasons) for the dismissal, and

 

(b) that it 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.

 

(2) A reason falls within this paragraph if it -

 

...

 

(b) relates to the conduct of the employee".

 

75.       Article 130 (4) provides:

 

"(4) Where the employee has fulfilled the requirement for paragraph one, 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 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".

 

76.       The Court of Appeal considered the approach an Employment Tribunal must take when considering the fairness of a misconduct dismissal in Rogan v South Eastern Health & Social Care Trust [2009] NICA 47, approving the decision in Dobbin v Citybus Ltd [2008] NICA 42 in which it was held:

 

"(49) The correct approach to [equivalent GB legislation] was settled in two principal cases - British Home Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 and explained and refined, principally in the judgements of Mummery LJ, in two further cases Foley v Post Office and HSBC Bank PLc (formerly Midland Bank) -v- Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury v Hitt [2003] ICR 111.

 

(50) In Iceland Frozen Foods, Browne-Wilkinson J offered the following guidance:-

 

"Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by [equivalent GB legislation] is as follows:-

 

(1) the starting point should always be the words of [equivalent GB legislation] themselves;

 

(2) in applying the section 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 for 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 an 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."

 

(51) To that may be added the remarks of Arnold J in British Home Stores where in the context of a misconduct case he stated:-

 

"What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground 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, it 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 circumstance be a reasonable conclusion".

 

77.       Article 130A (2) inserted into the 1996 Order by Article 23(2) of the Employment (Northern Ireland) Order 2003 (the 2003 Order), provides that:-

 

"Subject to paragraph(1), failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purpose of Article 130(4)(a) as by itself making the employer's action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure".

 

78.       In Software 2000 Ltd v Andrews [2007] IRLR 568 EAT, the EAT held that in the Article 130(4) "exercise of determining whether the employer has shown that the employee would have been dismissed if a fair procedure had been followed, and the assessment of whether, instead, the dismissal is unfair but subject to a Polkey reduction, are exercises which run in parallel". There are five possible conclusions that a tribunal may reach, according to Mr Justice Elias. Firstly, the evidence from the employer may be so unreliable that the exercise of seeking to reconstruct what might have been is too uncertain to make any prediction. Secondly, the employer may show that if fair procedures had been complied with, the dismissal would have occurred in any event. The dismissal will then be fair in accordance with Article 130(A). Thirdly, the tribunal may decide there was a chance of dismissal but that it was less than 50%, in which case compensation should be reduced in accordance with the Polkey principles. Fourthly the tribunal may decide that employment may have continued, but only for a limited period. Finally the tribunal may decide that the employment would have continued indefinitely because the evidence that it might have terminated earlier is so scant that it can effectively be ignored.

 

79.       The statutory dispute resolution procedures prescribed by the 2003 Order and set out in Schedule 1, part 1 of the 2003 Order apply in this case. Where an employer fails to comply with the 3 step statutory dismissal procedure, a dismissal is rendered automatically unfair.

 

80.       The tribunal considered the following case law:- Foley v Post Office; HSBC Bank Plc (formerly Midland Bank Plc) -v- Madden 2000 IRLR 827 CA; Sainsbury's Supermarkets Ltd v Hitt [2003] IRLR 23; Rogan v South Eastern Health & Social Care Trust [2009] NICA 47; Dobbin v Citybus Ltd [2008] NICA 42; Iceland Frozen Foods -v- Jones 1983 ICR17; British Homes Stores -v- Burchell 1978 IRLR 379 EAT; W Weddel and Company Limited -v- Tepper 1980 IRLR96; Polkey -v- A E Dayton Services Limited 1987 IRLR 503; Ulsterbus Limited v Henderson 1989 IRLR 251 NICA; Trusthouse Forte (Catering) Limited v Adonis 1984 IRLR 382; LJ Sewell and J Francis v Ford Motor Co 1973 IRLR 25; W Devis & Sons Ltd v RA Atkins 1977 IRLR 314; CEX Limited v Mark Lewis 2007 UKEAT/0013/07; Chamberlain Vinyl Products Limited v Patel[1996] ICR 113; Software 2000 Ltd v Andrews 2007 IRLR 568 EAT.

 

81.       The tribunal had regard to the Labour Relations Agency Code of Practice on Disciplinary and Grievance Procedures. Failure by an employer to observe any provision in the Code does not of itself make the dismissal unfair, but may be taken into account by a tribunal when deciding whether the employer acted reasonably in dismissing an employee. The Code sets out the "Core principles of reasonable behaviour" which are to use procedures primarily to help and encourage employees to improve/modify behaviour rather than just as a way of imposing a punishment; Inform employees of the complaint against them in advance of a meeting, and provide them with an opportunity to state their case before decisions are reached; Allow employees to be accompanied at disciplinary meetings; Make sure that disciplinary action is not taken until the facts of the case have been established and that the action is reasonable in the circumstances; Never dismiss employees for a first disciplinary offence, unless it is a case of gross misconduct; Give employees a written explanation for any disciplinary action taken and make sure they know what improvement is expected and how it will be monitored; Give employees an opportunity to appeal if they are unhappy with the decision or outcome; Deal with issues reasonably and without unnecessary delay; Act consistently.

 

CONCLUSIONS

 

Unfair Dismissal

 

82.       It is evident that the respondent complied with the statutory dismissal procedures and therefore the tribunal went on to consider the fairness or otherwise of the claimant's dismissal pursuant to Article 130 and 130A of the 1996 Order as amended.

 

83.       The tribunal was satisfied that the respondent had established that the reason for the claimant's dismissal was related to his conduct. The reason for the claimant's dismissal was therefore potentially fair.

 

84.       Therefore the tribunal had to determine whether the dismissal was fair or unfair within the meaning of Article 130(4) and whether the decision to dismiss the claimant did fall within the band of reasonable responses which a reasonable employer might have adopted, mindful that it is not for the tribunal simply to substitute its own view of what a reasonable course of action might have been taken by the respondent.

 

85.       In the present case the claimant admitted his actions after initially misleading his line manager and lying at the first fact finding interview. It was disputed by the claimant that his actions amounted to gross misconduct. The respondent conceded at the Hearing that the first disciplinary charge of unexcused delay of the mail, which related to the claimant's actions in overlooking the special delivery item had been wrongly categorised as gross misconduct. However it is clear that this was closely linked with the further deliberate actions of the claimant in breach of correct procedures, the contravention of which was clearly identified in the Conduct Agreement as being gross misconduct which would normally attract a penalty of summary dismissal. The claimant may not have been provided with a copy of the New Code of Conduct but he was well aware of the standards expected of him and the procedures he was required to follow when delivering Special Delivery Items.

 

86.       The tribunal rejected the contention that Mr Heekin had acted unfairly towards the claimant and "let" him tell an untrue version of events. The claimant set out deliberately to mislead his line manager because he thought it would "put the matter to bed". The tribunal did not consider that there was any basis for the claimant's assertion that he was telling his line manager "what he wanted to hear". The tribunal further considered that there was ample justification in the circumstances for Ms Fleming to conclude that these matters taken together resulted in a breach of trust and confidence and for this finding to be upheld on appeal.

 

87.       It was submitted that the respondent failed to carry out a fair process. The main criticisms being that the respondent did not properly implement the suspension policy and that there was undue delay in completing the process. While the tribunal accepted that Mr Heekin appears not to have fully understood the suspension process in sending the claimant home for a cooling off period and there was an element of delay in communicating the disciplinary outcome, the tribunal did not consider that these matters were sufficiently serious as to undermine the reasonableness of the investigation.

 

88.       It was further contended that the respondent did not give fair consideration to the matters raised in mitigation by the claimant for his actions on 18 and 19 November 2015. In particular the respondent was criticised as behaving unfairly because at the conduct interview and appeal stages it did not further investigate the claimant's medical condition by seeking to obtain its own further medical evidence on the claimant and because neither Ms Fleming nor Mr Hulme considered the claimant to be a disabled person within the meaning of the DDA. The tribunal distinguished the circumstances of the present case from those in the Patel case, as at the time of the conduct interview and appeal hearing the claimant did not allege that his actions were as the result of his medical condition but gave other explanations for his conduct. The medical reports submitted by the claimant at the appeal stage in the view of the tribunal referred to the effects of the disciplinary process rather than providing an explanation for the claimant's misconduct. In the circumstances the tribunal did not consider it was unreasonable for Mr Hulme to make his decision on the evidence, including the medical reports supplied by the claimant, available at that time.

 

89.       Furthermore the medical evidence submitted by the claimant for the purpose of the Hearing does not in the view of the tribunal support the contention that the claimant's actions at the time were caused by his disability. The tribunal further took into account that work gave the claimant structure and his ability to carry out his duties was not affected by his mental impairment. The claimant's own evidence was that he was aware of the standards of conduct expected of him relating to the delivery and integrity of the mail. The tribunal considered that the stress he may have felt at being with partnered by Mr Martin could have caused him inadvertently to overlook the delivery of the special delivery item, but the tribunal did not believe that this provided a credible explanation for the claimant's deliberate actions on the 18 November 2015 in scanning and signing for the item at the lockers, carrying out the delivery in his own vehicle, leaving the item with a neighbour and then lying about it afterwards.

 

90.       The tribunal considers that the matters put forward by the claimant and by his trade union representatives by way of explanation and mitigation of his actions, including personal issues and the medical evidence which was submitted by him at the appeal stage were fully taken into account and the respondent did not act unreasonably by not seeking its own medical evidence.

 

91.       In the circumstances the tribunal reminds itself that it cannot substitute its own view of what the disciplinary outcome should have been and considers that in the present case summary dismissal was within the limits of the range of responses open to
Ms Fleming in the first instance and as confirmed upon appeal.

 

92.       The claimant's complaint of unfair dismissal is therefore dismissed.

 

Disability Discrimination

 

Direct Disability Discrimination

 

93.       The tribunal determines that the claimant was not subjected to unlawful direct discrimination. The tribunal has found that the reason for the claimant's dismissal was due to his own actions which amounted to gross misconduct and that those actions were not caused by his disability. Further the tribunal did not consider that the claimant had established facts from which it could conclude that an able bodied comparator in with similar characteristics to the claimant would have been treated more favourably either in the manner in which the disciplinary process was conducted or that a lesser penalty would have been imposed. The complaint of unlawful direct discrimination is therefore dismissed.

 

Failure to Make Reasonable Adjustments

 

94.       It was submitted on behalf of the claimant that the respondent had imposed a requirement upon the claimant to carry out his duties without misconduct and that if the claimant is responsible for disability related misconduct then he is at a substantial disadvantage as compared to a non-disabled employee by reason of being at a greater risk of a disciplinary sanction; and, in the present case the substantial disadvantage suffered by the claimant was in being dismissed and/or that he was subjected to prejudice, detriment and stress/anxiety throughout the lengthy disciplinary process. The tribunal rejects these contentions having found as a fact that the claimant's actions were not caused by his disability. In any event the tribunal does not accept that in circumstances where an employee has committed an act of gross misconduct for which the penalty of summary dismissal was a proportionate, fair and reasonable response, it can be held that he has suffered a "substantial disadvantage". Similarly the tribunal did not accept that the stress and worry which would naturally flow from being subject to a disciplinary process substantially disadvantaged the claimant. In this regard the tribunal took into account that at each stage of the process the claimant was reminded of the Feeling First Class services provided specifically to assist with dealing with stress at work.

 

95.       To the extent that it was being argued that the Conduct Agreement itself amounted to a PCP, the tribunal considers the passage in Harvey L3B2 para 389.01, to which it was referred, to be particularly relevant to the present case:

 

'A provision, criterion or practice might include such matters as the rules governing the holding of disciplinary or grievance hearings. It is unlikely however that the application of a flawed disciplinary procedure on a one-off basis will amount to a 'PCP' —see  Nottingham City Transport Ltd v Harvey[2013] EqLR 4,  [2013] All ER (D) 267 (Feb) , EAT  which states that 'practice connotes something which occurs more than on a one-off occasion and which has an element of repetition about it.' See also Carphone Warehouse v Martin UKEAT/0371/12   [2013] EqLR 481  in which Shanks J held that 'the lack of competence in relation to a particular transaction cannot, as a matter of proper construction, in our view, amount to a "practice" applied by an employer any more than it could amount to a "provision" or "criterion" applied by an employer' .

 

96.       Further the tribunal took into account the reasonable adjustments that it was contended were necessary for the claimant were related to alleged flaws in the process rather than any substantial disadvantage experienced by the claimant, including:

 

"Informing the claimant in writing of the complaints he was facing prior to the first fact find on 19 November 2015.

 

Ensuring that the claimant had a representative at the first fact find meeting.

 

Ensuring that there was not undue delay in the disciplinary process.

 

Ensuring the commission of medical evidence relating to the claimant's mental health condition.

 

Ensuring that the claimant was not dismissed from employment".

 

The tribunal was also referred in this context to the Paragraph 12 cited above of the LRA Code of Practice. The tribunal was mindful that at no stage during the process or indeed at the Hearing, did the claimant make the case that he did not comprehend the nature of the charges against him or that he needed measures to be taken to assist him through the process.

 

97.       Therefore the tribunal is not satisfied that the claimant has established the requisite facts to show that there was a requirement to make reasonable adjustments for him and this complaint is dismissed.

 

98.       The tribunal finds that the claimant's claims of unfair dismissal and disability discrimination are not well founded and his claims are dismissed in their entirety.

 

Employment Judge:

 

Date and place of hearing: 10-13 April, 24 April & 28 April 2017, Belfast.

 

 

Date decision recorded in register and issued to parties: