Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 5608/17IT

 

 

CLAIMANT: Leo Fearon

 

 

RESPONDENT: Royal Mail Group Limited

 

 

DECISION

The unanimous decision of the tribunal is that the claims of unfair dismissal and unauthorised deduction from earnings (notice pay) are dismissed.

 

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Mr A Huston

Mr A Carlin

 

Appearances:

The claimant was represented by Mr Gerry Grainger Barrister at Law, instructed by Rosemary Connolly Ltd Solicitors.

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

Background

 

1. The claimant was an OPG (Postman) with approximately 30 years' service and was based in Warrenpoint.

 

2. On 15 June 2017, the claimant was summarily dismissed on the grounds of gross misconduct.

 

3. The claimant lodged a claim in the Tribunal alleging unfair dismissal and unauthorised deductions from earnings (notice pay) together with alleged unpaid holiday pay.

 

4. The claim for allegedly unpaid holiday pay was discontinued and dismissed. The claim of alleged unfair dismissal and alleged unauthorised deductions from earnings (notice pay) continued to hearing.

 

5. This claim had been case managed. Directions have been given in relation to the interlocutory process and the use of the witness statement procedure. The parties exchanged signed and dated witness statements in advance of the hearing. Each witness swore or affirmed to tell the truth, adopted their written witness statement as their evidence in chief and moved immediately into cross examination and brief re-examination.

 

6. The claimant gave evidence on his own behalf. He did not call any other witness.

 

7. The following witnesses gave evidence on behalf of the respondent:

 

(i) Mr Donal Carabine, the claimant's line manager who was responsible at the relevant time for three postal delivery offices in that area.

 

(ii) Mr Gerard Brady, the Delivery Office Manager in the Newry delivery office. He was the claimant's second line manager and chaired the disciplinary hearing.

 

(iii) Ms Collette Walker who was employed in the human resources division of the respondent and who heard the claimant's appeal against the dismissal.

 

The tribunal sat on 13 March 2018 and 14 March 2018. The panel met, after the submissions, to reach its decision. This document is that decision.

 

Relevant law

 

Unfair dismissal

 

8. The statutory test to be applied by a tribunal, when considering the fairness of a misconduct dismissal, appears simple. However it has provoked a lengthy series of appellate decisions.

 

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

 

"130(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 reason (or if more than one, the principal reason) for the dismissal and

 

(b) that 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.

 

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

 

(b) relates to the conduct of the employee,

 

(4) 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. "

 

10. The Court of Appeal in Rogan v South Eastern Health & Social Care Trust [2009] NICA 47 approved the earlier decision of Court in Dobbin v Citybus Ltd [2008] NICA 42 where the Court 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. "

 

11. In Bowater v North West London Hospitals NHS Trust [2011] EWCA Civ 63, the Court of Appeal (GB) considered a decision of the Employment Appeal Tribunal which had set aside a decision of an employment Tribunal. The Employment Tribunal had determined that a remark made by a nurse in an Accident & Emergency Department was not a sufficient basis for a fair dismissal. Lord Justice Longmore stated at Paragraph 18 of the decision that:-

 

"I agree with Stanley Burnton LJ that dismissal of the appellant for her lewd comment was outside the range of reasonable responses open to a reasonable employer in the circumstances of the case. The EAT decided that the ET had substituted its own judgment for that of the judgment to which the employer had come. But the employer cannot be the final arbiter of its own conduct in dismissing an employee. It is for the ET to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable options open to a reasonable employer. "

 

He continued at Paragraph 19:-

 

"It is important that, in cases of this kind, the EAT pays proper respect to the decision of the ET. It is the ET to whom Parliament has entrusted the responsibility of making what are, no doubt, sometimes, difficult and borderline decisions in relation to the fairness of dismissal. "

 

12. In Fuller v London Borough at Brent [2011] EWCA Civ 267, the Court of Appeal (GB) again considered a decision of the Employment Appeal Tribunal which had set aside the decision of an employment tribunal on the basis that the employment tribunal had substituted its view for the decision of an objective reasonable employer. Lord Justice Mummery stated at Paragraph 7 of the decision that:-

 

"In brief, the council's case on appeal is that the ET erred in law. It did not apply to the circumstances existing at the time of Mrs Fuller's dismissal the objective standard encapsulated in the concept of the 'range or band of reasonable responses'. That favourite form of words is not statutory or mandatory. Its appearance in most ET judgments in unfair dismissal is a reassurance of objectivity. "

 

At Paragraph 38 of the decision, he continued:-

 

"On a proper self-direction of law I accept that a reasonable ET could properly conclude that the council's dismissal was outside the band or range of reasonable responses and that it was unfair. If, as I hold, the ET applied the objective test, it did not err in law and there was no ground on which the EAT was entitled to set it aside or to dismiss Mrs Fuller's claim. "

 

13. In Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721, the Court of Appeal (GB) again considered a decision of an Employment Appeal Tribunal which had set aside the decision of an employment tribunal on the ground that that tribunal had substituted their judgment of what was a fair dismissal for that of a reasonable employer. At Paragraph 13 of the judgment, Lord Justice Elias stated:-

 

"Section 98(4) focuses on the need for an employer to act reasonably in all the circumstances. In A v B [2003] IRLR 405, the EAT (Elias J presiding) held that the relevant circumstances include the gravity of the charge and their potential effect upon the employee. So it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where, as on the facts of that case, the employee's reputation or ability to work in his or her chosen field of employment is potentially apposite"

 

"In A v B the EAT said this:- Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers. Of course even in the most serious cases it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the enquiry should focus no less on any potential evidence that may exculpate or least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him. "

 

14. The Court of Appeal in Northern Ireland further examined the approach that a tribunal should adopt in claims of unfair dismissal in the case of Connolly v Western Health & Social Care Trust [2017] NICA 61.

 

In that case, a nurse, who was on duty in a hospital ward and who was experiencing the symptoms of an asthma attack, used a Ventolin inhaler from the locked ward stock. She had intended to replace it with another inhaler which would have been supplied to her on her own prescription. She had not sought prior permission to use the hospital's inhaler; she had not approached any doctor in the hospital for assistance; she had not attended the Accident & Emergency Department for assistance. She did not disclose the use of the inhaler until her next day on duty two days later. It was not in dispute that there had been misconduct on the part of the claimant in using a prescription only medicine which was part of hospital stock. The issue in all of this was whether the misconduct had been sufficiently serious to ground summary dismissal for gross misconduct.

 

15. The WHSCT had been concerned that the claimant had intended to replace the inhaler from her own supply. That would have broken the chain of supply within the hospital and in the employer's view would have presented a serious risk to the health of patients. The employer was also concerned that the claimant had sought, in response to the disciplinary proceedings, to stress that Ventolin had not been a controlled drug (although it had been a prescription only drug). The employer felt the claimant still believed that her conduct was permissible in certain circumstances and that therefore the behaviour could recur. The claimant was summarily dismissed for gross misconduct.

 

16. This case was the subject of two separate appeals to the Court of Appeal. However, the later appeal is the one relevant to the present case. It was a split decision. The minority decision, reached by Gillen LJ, found that the tribunal decision had been correct, in that it had held that there had been a fair dismissal for gross misconduct. The hospital rules had made it clear that ' misappropriation' of drugs was a potential offence. The claimant had not notified any other member of staff of her use of the inhaler before using it or for the rest of that shift. She had attended work for her next shift some two days later and had only then informed her manager that she had used the Ventolin inhaler from ward stock.

 

17. In essence, Gillen LJ determined that the decision to summarily dismiss the claimant in all the circumstances of the case had been a decision which a reasonable employer could reasonably have reached, even if may not have been the decision that the tribunal or the court would have reached, had it been determining the issue at first instance.

 

18. After citing the usual authorities, Gillen LJ approved the following statement in the tribunal's findings:-

 

"It may not re-hear and re-determine the disciplinary decision originally made by the employer; it cannot substitute its own decision for the decision reached by that employer. In the case of a misconduct dismissal, such as the present case, the tribunal must first determine the reason for the dismissal: that is, whether in this case the dismissal was on the basis of conduct and must determine whether the employer believed that the claimant had been guilty of that misconduct. The tribunal must then consider whether the employer had conducted a reasonable investigation into the alleged misconduct and whether the employer had then acquired reasonable grounds for its belief in guilt. The question is not whether the tribunal will have reached the same decision from the same evidence or even on different evidence. The tribunal must then consider finally whether the decision to dismiss was proportionate in all the circumstances of the case."

 

19. Gillen LJ then noted that the tribunal had determined that the employer had been concerned by the use of the prescription only inhaler from the ward stock which had been kept under lock and key, the claimant's intention to replace that inhaler with an inhaler from her own supply and that she knew the use of such medication was wrong. The tribunal had determined that the employer had held a genuine belief in gross misconduct which had been reached on reasonable grounds following a reasonable investigation and that it was not for the tribunal to substitute its own opinion or penalty for that of the employer in the circumstances of this case. Gillen LJ determined that:-

 

"49. I consider that there is no basis upon which this court could consider that this conclusion was plainly wrong or that it could not have been reached by any other reasonable tribunal. Taking a prescription drug from under lock and key for the appellant's own use is clearly an extremely serious matter which no hospital can or should tolerate. Not only was the appellant well aware that this was prohibited behaviour but it could easily have been avoided by seeking assistance from A and E or the duty doctor.

 

50. It was not unreasonable to conclude that this was aggravated by her failure to report the matter until two days later. Moreover it was perfectly reasonable for the Panel, made up of employees of the Trust well versed in Trust procedures and policies, to take the view that intent to personally replace it infringed the pharmacy supply chain. Frankly it scarcely requires an expert to inform the court that decisions to replace prescribed medications in principle should not be taken at this level irrespective of how simple an exercise in replacement in individual instances may appear to be."

20. Gillen LJ concluded:-

 

"57. Whilst this may not necessarily have been the conclusion that this court would have reached had it been hearing the matter at first instance, I find no basis for substituting our view for that of the Panel and the Industrial Tribunal hearing this matter. I therefore dismiss this ground of appeal."

 

21. The majority of the Court of Appeal in Connolly, Deeny LJ and Weir LJ, reached a different conclusion. Firstly, they concluded that the decision of the respondent to dismiss the claimant, in all the circumstances of the case, was not a decision which a reasonable employer could reasonably have reached. Secondly, it determined that the decision of the industrial tribunal was ' plainly wrong'. That second decision is based on the facts of the Connolly decision and on the view taken by the majority of the Court of Appeal in relation to the wording of the tribunal decision in that case. The first decision, and the approach taken by the majority to the objective standard of reasonableness, is of primary importance to the present decision.

 

22. Deeny LJ stated that:-

 

"Reaching a conclusion as to whether the dismissal is fair or unfair 'in accordance with equity and the substantial merits of the case' as required by Article 130(4)(b) would appear to involve a mixed question of law and fact."

 

23. Deeny LJ then cited the well-known paragraph in Iceland Frozen Foods Ltd v Jones (above) which sets out the ' reasonable responses' test. He went on to quote further from that decision to include the following:-

 

" Although the statement of principle in Vickers Ltd v Smith [1977] IRLR 11 is entirely accurate in law, for the reasons given in N C Watling & Company Ltd v Richardson [1978] ICR 1049, we think industrial tribunals would do well not to direct themselves by reference to it. The statement in Vickers Ltd v Smith is capable of being misunderstood so as to require such a high degree of unreasonableness to be shown that nothing short of a perverse decision to dismiss can be held to be unfair within the section. This is how the industrial tribunal in the present case seems to have read Vickers v Smith. That is not the law. The question in each case is whether the industrial tribunal considers the employer's conduct to fall within the band of reasonable responses and industrial tribunals would be well advised to follow the formulation of the principle in N C Watling & Company Ltd v Richardson [1978] ICR 1049 or Rolls Royce Ltd v Walpole [1980] IRLR 343. "

 

24. Deeny LJ then pointed out that gross misconduct justifying dismissal must amount to a repudiation of the contract of employment by the employee:-

 

"So the conduct must be a deliberate and wilful contradiction of the contractual terms."

 

25. Deeny LJ stated that:-

 

"The facts as found are that she [the claimant] took five puffs of this inhaler when undergoing an asthmatic attack, without permission. The tribunal accepted the Appeal Panel's view that this was aggravated by her failure to report the matter until two days later.

 

It seems to me that, even taking into account the delay, for which an explanation was given and was not rejected as a finding of fact, that cannot constitute 'deliberate and wilful conduct' justifying summary dismissal. Her terms of employment do not seem to have expressly prohibited such a use. The Code of Conduct is ambiguous at best on the topic. If she had asked the Ward Sister for permission before she used the inhaler and the Sister had refused her permission and she had nevertheless gone ahead and had used it one might have had the sort of act of disobedience contemplated by the Court of Appeal in Laws v London Chronicle Limited. That would have been a deliberate flouting of essential contractual conditions, ie following the instructions of her clinical superiors. But that is not what happened here. Furthermore, I agree with the statements in Harvey ... that dismissals for a single first offence must require the offence to be particularly serious. Given the whole list of matters which the employer included under the hearing of Gross Misconduct it is impossible, in my view, to regard the nurse's actions as 'particularly serious'."

 

26. Deeny LJ stated:-

 

"For this court to approbate the tribunal's decision upholding as within a reasonable range of responses the summary dismissal of an employee from her chosen profession on these facts without any prior warning as a 'repudiation of the fundamental terms of the contract' would be to turn language on its head. Employment law is a particular branch of the law of contract. With statutory interventions it has, of course, developed a character of its own. But any dismissed employee opting to go into a court of law and claim damages for breach of contract at common law against an employer who had summarily dismissed them for using a Ventolin inhaler while suffering from an asthmatic attack and delaying two days in reporting that, particularly when it was their 'first offence', could be tolerably confident of success before a judge, in my view."

 

27. Deeny LJ held further that:-

 

"The interpretation of what, in this jurisdiction, is Article 130(4)(a) of the 1996 Order has been fixed by a series of appellate courts over the years, ie that whether an employer acted reasonably or unreasonably is to be addressed as whether an employer acted within a band of available decisions for a reasonable employer even if not the decision the tribunal would have made. That test, expressed in various ways, is too long established to be altered by this court, and in any event has persuasive arguments in favour of it. But it is necessary for tribunals to read it alongside the statutory provision of equal status in Article 130(4)(b), ie that that decision 'shall be determined in accordance with equity and the substantial merits of the case'. ... ."

 

28. The statutory test of unfairness in Article 130 of the 1996 Order is in simple terms, and should be straightforward. It is difficult to see why it has generated such an extended discussion in case law over the last 40 years. The words of Article 130 comprise the only statutory test of unfairness. The formulation of the ' band of reasonable responses' test, variously worded in different decisions, cannot be a substitution for the proper application of the statutory test. It may best be regarded as a double-check to be applied to ensure that, in applying the statutory test, the tribunal has avoided substituting its own views, on what it would have done in the relevant circumstances, for the decision of the employer. In other words it is, as the Court of Appeal (GB) stated in Fuller (above), a ' reassurance of objectivity'.

 

It is therefore important to remember that the ' reasonable responses' test, although long-established as pointed out by the Court of Appeal in Connolly (above), appears nowhere in the statute. This is a statutory tribunal whose function is to apply the statute. Non-statutory wording or non-statutory paraphrasing of the statutory test can only be of assistance where it is remembered that it cannot substitute for the statutory test which sets out the remit and the function of the tribunal. In Iceland (above), it was stressed that the starting point should be the words of the legislation. In Connolly (above) the Court of Appeal (Northern Ireland) emphasised the importance of applying the statutory test as a whole.

 

29. There is no difference between the formulation of the legal principles expressed in the majority judgment and in the minority judgment in the case of Connolly. The detailed formulation of those principles set out by Gillen LJ at Paragraph 28(i) - (xvi) of the decision covers, in full, the procedure which should be adopted by an industrial tribunal in assessing the fairness or unfairness of a misconduct dismissal. It is not disputed or challenged in any way in the majority judgement.

 

30. In Reilly v Sandwell Metropolitan Borough Council [2018] UK SC16, the Supreme Court looked at a case of alleged unfair dismissal. The facts of that particular case are not of assistance to the present matter. However it is notable that Lady Hale, the President of the Supreme Court stated;

 

"the case might have presented an opportunity for this court to consider two points of law of general public importance which have not been raised at this level before."

 

The first point is not of relevance to the present matter. However, Lady Hale described the second point in the following way;

 

"nor have we heard any argument on whether the approach to be taken by a tribunal to an employer's decisions, both as to the facts under section 98(1) to (3) as the Employment Rights Act 1996 first led down by the Employment Appeal Tribunal in British Homes Stores Limited v Burchell [1978] ICR 303 and definitively endorsed by the Court of Appeal in Foley v Post Office [2000] ICR 1283, is correct."

 

She went on to state;

 

"Even in relation to the first part of the inquiry, as to the reason for the dismissal, the Burchell approach can lead to dismissals which were in fact fair being treated as unfair and dismissals which were in fact unfair being treated as fair. Once again, it is not difficult to think of arguments on either side of this question but we have not heard them."

 

31. Lady Hale went to state;

 

"34. There may be good reasons why no one has challenged the Burchell test before us. First, it has been applied by Employment Tribunals, in the thousands of cases which have come before them, for forty years now. It remains binding upon them and on the Employment Appeal Tribunal and Court of Appeal. Destabilising the position without a very good reason would be irresponsible. Second, Parliament has had the opportunity to clarify the approach which is intended, should it consider that Burchell is wrong, and it has not done so. Third, those who are experienced in the field, whether acting for employees or employers, may consider the approach is correct and does not lead to injustice in practice.

 

35. It follows that the law remains as it has been for the last 40 years and I express no view about whether that is correct.

 

32. Therefore, while the Supreme Court recognised the long standing of the Burchell test, and pointed out the significant difficulties inherent in challenging that non statutory test at this stage, it did, rather pointedly, indicate that they were not expressing any view about whether the non statutory test is correct and that they had not heard any argument in relation to that point. At the least, the Supreme Court questioned whether the "reasonable responses" test should be challenged at the final appellate level.

 

33. In Ramphal v Department for Transport UKEAT/0352014 the EAT considered an unfair dismissal case where the officer responsible for making the disciplinary decision had been "lobbied" in relation to issues of the worker's credibility and his level of culpability. The advice that the individual had received had not been limited to matters of law and procedure and to the level of appropriate sanctions with a view to achieving consistency. The EAT determined that;

 

"an Investigating Officer is entitled to call for advice from Human Resources; but Human Resources must be very careful to limit advice essentially to questions of law and procedure and process and to avoid straying into areas of culpability, let alone advising on what was the appropriate sanction as to appropriate findings of fact in relation to culpability insofar as the advice went beyond addressing issues of consistency."

 

Relevant Findings of Fact

 

34. Two incidents are relevant to the present case. The first such incident occurred on 11 November 2016.

 

35. On that date, Mr Brady, the Delivery Office Manager, who had been based in Newry, addressed the OPG staff who were based in Warrenpoint. He had advised them specifically about the respondent's policy in relation to ensuring that post office vans were kept locked when unattended and that mail should not be left unattended at any stage. He stressed that if they had any doubt about the consequences of any breach of that procedure, they should speak to a colleague in Newry who had recently received a suspended dismissal for precisely that misconduct.

 

36. The "Security Standards" policy had been provided to all postmen, including to the claimant in this matter. Those standards stressed that;

 

"customers' parcels and letters must not be left unattended or unsecured anytime"

 

"vehicles and contents are fully secured at all times when unattended"

 

"parcels and letters due for delivery must not be left on view in an unattended vehicle".

 

37. All drivers are asked to sign a declaration twice a year, in April and in October, confirming that they have read and will adhere to the security rules. The document which they sign includes the following:

 

"when leaving the van unattended;

 

- always remove the ignition key and keep it on your person

 

- close all windows fully, however, provided no mail is in the cab, it is accepted that the driver's window may be left partially open (no more than 2cm) to allow for ventilation

 

- lock all doors and set alarms, were fitted

 

- when not in use, PDAs and collection keys must be kept out of sight in glove box or in rear of van."

 

The document which the driver signed also includes the following;

 

"- never leave mail on view in an unattended van - drivers must satisfy themselves that the van and contents are secure when left unattended."

 

38. On that same day, the claimant was observed by the Post Office Investigation Department (POID). He had left his van with the driver's door open and some mail unsecured on the passenger seat of that vehicle. He had then gone into an office building. That office building had a glass front and was within an industrial estate.

 

39. It is clear that the claimant had been present throughout the talk given by Mr Brady on that morning. It is also clear that he had been fit enough to attend work and had not sought at any stage during that day to argue that for any reason he had been unfit to either work or to listen properly to the warning given by Mr Brady. It is also clear that the claimant knew at that stage that a colleague of his in Newry had recently been disciplined for exactly that offence. What he may not have known the exact penalty that that colleague had received, he had clearly been aware of that being a real issue in terms of discipline.

 

40. Three days later, on 14 November 2016, the POID informed the claimant's line manger Mr Carabine that the claimant had been spotted inside Milltown Industrial Estate in Warrenpoint talking to a customer inside an office building while his van was running and while the driver's door had been open with undelivered mail on the passenger seat.

 

41. Mr Carabine wrote to the claimant on 15 November 2016 inviting him to an investigation interview on 18 November in the Warrenpoint office. He was advised that he had the right to be accompanied by a trade union representative or by a colleague.

 

42. On 18 November 2016 the claimant was represented by a colleague. The claimant confirmed that he understood the security rules for drivers. He stated he had gone into a customer's premises which had a glass front from floor to ceiling. He had delivered mail and had collected a pouch from reception. He stated that the van had at no stage been in danger as he could see it. He did not allege that for any health reasons or for any other reason he had been prevented from listening to Mr Brady's briefing that morning or that he had in any way misunderstood or had been prevented from adhering to the security rules for drivers.

 

43. On 24 November 2016, Mr Carabine wrote to the claimant advising him that the matter had been referred to Mr Brady for consideration of any further action. He stated that;

 

"I consider the potential penalty could be outside my level of authority which can be up to and including dismissal."

 

44. At this time, the claimant's attendance at work had been causing concern. He had been invited to attend a attendance review meeting on 2 December 2016 where he had been advised that he had been in breach of minimum attendance standards and that if he incurred further absences which exceeded the attendance standards, further action may be taken which could lead to his dismissal under the formal attendance process.

 

45. Mr Brady conducted a formal disciplinary meeting with the claimant on 14 December 2016. He had been advised that the meeting was being held to "discuss that an Unattended Mails Check performed by the security team found that you are away from the vehicle with the keys still in the ignition." The invitation stated that the conduct notification (disciplinary charge) was;

 

" failure to secure the vehicle."

 

46. The claimant was advised of his right to be accompanied by a trade union representative or a colleague and was further advised the matter was being considered as gross misconduct and that an outcome could be dismissal without notice.

 

47. On 14 December 2016, the claimant was represented by Mr Billy Hannaway of the CWU. The claimant did not dispute the facts of the case. He argued that he had parked as close to the building as he could. He acknowledged that he had signed the security rules. He stated that he had not read what had been contained in the brief. He stated that he "never reads" what he is signing.

 

Mr Hannaway had argued that the security team (POID) had no right to be in private property. Mr Brady stated that this had been an industrial estate and not a private yard.

 

The claimant confirmed the notes of the meeting by signing those notes.

 

48. At no stage in that meeting had the claimant argued that, through stress or through some other medical reason, he had been prevented or impeded from adhering to the security rules for drivers.

 

49. On 20 December 2016, Mr Brady wrote to the claimant upholding the disciplinary charge and confirming a penalty of a two year suspended dismissal. He advised the claimant that he had a right to appeal against that decision. No appeal was lodged.

 

50. In the course of the tribunal hearing, the claimant argued that he had been prevented through stress and general ill health from lodging an appeal at that time. The tribunal does not accept that explanation. There had been no such argument in the course of the investigation meeting with Mr Carabine or in the course of the disciplinary hearing with Mr Brady. The claimant had been represented in each meeting. Furthermore he had been represented in the disciplinary hearing by a CWU representative. There had been no representations from the CWU to the effect that the appeal would be delayed through health reasons or seeking any accommodation in that respect.

 

The tribunal concludes that the only reason the claimant did not appeal the penalty of a two year suspended dismissal was that he had regarded that as a fair penalty in all the circumstances and that it had been in fact the same penalty as that imposed on his colleague in the Newry office.

 

51. Furthermore is not been argued at any stage by the CWU that the issue had not been an issue of gross misconduct. In the context of postal delivery, the respondent had been entitled to make clear and obvious security rules and to insist that drivers adhered to those rules. The claimant had shown a level of carelessness and disregard for those procedures in that he had made it plain in the course of the disciplinary hearing that he did not read the security rules when he signed them and that, despite the fact that he had attended a specific briefing on this issue on the morning of the disciplinary incident, he stated that he could not remember that briefing. That seems to the tribunal to be highly unlikely given the clear terms of the briefing and given that the claimant had been aware at that stage that one of his colleagues in a neighbouring office had been similarly disciplined for this issue.

 

52. The penalty of a two year suspended dismissal appears to the tribunal to have been a reasonable penalty in the context of postal delivery and the tribunal is not at all surprised that the claimant did not wish to appeal that penalty.

 

53. The second disciplinary incident, and the one which directly led to the claimant's dismissal, occurred on Saturday 6 May 2017.

 

54. It is clear that the number of deliveries on a Saturday had been less than the number of deliveries during the working week. Many of the businesses which operated on the claimant's run were closed on a Saturday. Mr Carabine, the claimant's line manager had expressed his concern previously about whether or not the claimant had enough work to fulfil his contracted hours on a Saturday. He had suggested altering his hours during Monday to Friday while keeping his Saturday hours shorter and he had suggested as an alternative obtaining extra hours of work on a Saturday for the claimant. The claimant had rejected those suggestions and had assured Mr Carabine that he had enough work on a Saturday to take him through to his finishing time. Mr Carabine had accepted the claimant's assurances in this respect.

 

55. On a Saturday the claimant had been contracted to finish at 15.20 pm. That would have brought him up to 39 hours which had been his contracted weekly hours. Those hours were assessed on a weekly basis. If he finished early on a particular day or days, that shortfall was set against any hours which he had worked on other days as overtime. If he had still worked in excess of 39 hours that week, he would have been paid overtime for the excess hours. If he had worked less than 39 hours per week because he had finished early on one or more days, his pay would not have been deducted. However that shortfall in hours, if it had become regular, would have been a matter of concern to the respondents and his duties would have been amended.

 

56. On Saturday 6 May 2017, the claimant had agreed to attend his goddaughter's first holy communion. He had finished work at 12.25 pm and had gone home at that point, without returning to the Warrenpoint Delivery Office.

 

57. He did not contact his line manager in person or by telephone to advise him that he wanted to leave early or to seek permission to do so.

 

58. The post office vans were kept in a yard some distance from the delivery office. That yard was only locked at night after the last van had entered. The claimant left his van in that unsecured car park. He had locked the van but had left his PDA (handheld computer) on the rear wheel of that van.

 

59. The normal and correct procedure for dealing with a PDA at the end of a duty was to return the PDA to its charging socket in the delivery office in Warrenpoint and to sign out. The claimant not chose not to do that and he left the PDA in an unsecured car park on the rear wheel of the van. He had arranged with a colleague to pick up the PDA and to return it to the office later.

 

60. Mr Carabine, the claimant's line manager, noticed the van in the car park at 13.44 pm and noticed the PDA placed on the back wheel.

 

61. On Sunday 7 May 2017, the claimant unlocked the delivery office in Warrenpoint which was at that stage empty and unmanned. He filled in the timesheet for Saturday 6 May 2017. In that timesheet under the column which stated "time back" he recorded 15.00 pm. In the column marked "finish time" he indicated that his scheduled finish time was 15.18 pm and that his actual finish time had been 15.20 pm.

 

62. At that stage, the claimant had been dishonest in two significant respects. He had falsified the time back in the delivery office and he had falsified his finish time. In a situation where the claimant had clearly avoided attending the delivery office on the previous day to notify his finishing time and to return the PDA, the respondent was entitled to regard this dishonesty as a significant matter.

 

63. On Monday 8 May 2017, Mr Carabine advised the claimant that he had discovered his van had been parked in the car park at 13.44 pm with the PDA placed on the back wheel. Mr Carabine asked the claimant why this had occurred when he had signed out at 15.20 pm. The claimant had simply replied "that was my finishing time". The claimant did not disclose at this point that he had actually finished work at 12.25 pm and that he had gone home at that point. That again had been significant dishonesty on his part and was a matter which a reasonable employer was entitled to view seriously. The claimant was suspended at that point. The claimant did not argue at that point that ill health had contributed in any way to his actions on Saturday 6 May 2017.

 

64. The claimant was asked to attend an investigation interview on Tuesday 9 May 2017. He was advised that he had the right to be accompanied by a trade union representative or by a work colleague.

 

65. The claimant was represented by Mr Hannaway a CWU representative at that investigation interview. The claimant was asked when he had finished work on Saturday 6 May 2017. He stated that he had finished at 13.30 pm which had been another example of dishonesty. The claimant stated that he had signed out on Sunday. He stated that he had not signed out on Saturday because he had been feeling unwell and that he could not complete his delivery. He had parked the van up and had telephoned a colleague to finish the last part of his duty and had telephoned another colleague to take his PDA back to the office on the back wheel of his van. This was another significant example of dishonesty.

 

66. The claimant had arranged for his first colleague to lie on his behalf and to put forward the proposition that he had been asked by the claimant to carry on the remainder of his run because the claimant had not been feeling well. That had been totally untrue and the run had been finished by the claimant. No such arrangements had been made. That particular employee had been subject to disciplinary action subsequently.

 

67. The claimant remained on precautionary suspension and he was invited to a formal disciplinary meeting on 2 June 2017. The claimant's representative, Mr Hannaway, had agreed to the short notice of that meeting. The invitation to the meeting indicated that Mr Brady would be taking into account the claimant's conduct record which currently included a two year suspended dismissal for the incident in 2016. He was also advised that the charge was being considered as misconduct. He was not advised that it was been treated as gross misconduct. However given the two year suspended dismissal which was still active at that point, misconduct still carried a real risk of dismissal and the absence of the word "gross" could not have had any real effect on the claimant. He would have been aware that dismissal was a real option in this case. In any event, neither he, or his civil representative could have believed that the incident on 6 May  2017, which had involved the falsification of a time sheet and leaving work early was anything other than gross misconduct.

 

68. At the disciplinary interview on 2 June 2017, the claimant was again represented by Mr Hannaway of the CWU. He stated that he had finished work at approximately 12.30 pm on Saturday 6 May 2017. He stated that he had returned his van to the yard and that his wife was collecting him. He had arranged for one colleague to take his PDA back to the office. He stated that he had not been well and that he had been speaking to his wife on and off all morning. He stated that he had suffered from stress. He confirmed that he had attended his godchild's first holy communion that afternoon.

 

He confirmed that he had not, as he had previously stated, arranged for another colleague to take over part of his run on Saturday 6 May 2017 because he had been feeling unwell.

 

69. On 13 June 2017, Mr Brady wrote to the claimant indicating that he was been summarily dismissed. The charge that on 6 May 2017, the claimant's van had been parked up at 13.44 pm and that he had signed out at 15.20 pm was upheld.

 

Mr Brady concluded that the claimant had lied from the start after he had first been challenged on 8 May 2017 and that another employee had also lied in maintaining at interview, at the claimant's request, that he had completed the remainder of the claimant's delivery on the 6 May 2017 because the claimant had been feeling unwell.

 

70. Mr Brady did consider whether a suspended dismissal was appropriate in this matter. However he had discussed it with a colleague in HR and had been advised that it would not be the respondent's practice to have two contemporaneous suspended dismissals. That conversation did not include matters of culpability or dishonesty and did not go beyond the procedural issue of whether it was the practice of the respondent to impose two contemporaneous suspended dismissals.

 

71. Mr Brady concluded that the incident in May 2017 and the previous incident in 2016 amounted to acts of gross misconduct and that they warranted dismissal.

 

72. The claimant appealed against that dismissal. He alleged that Mr Hannaway had not put forward adequate mitigating circumstances on his behalf. He stated that he had long service and that his previous offence was of an entirely different nature to the current offence. He stated that that suspended dismissal in 2016 had been unduly harsh. He argued that the sanction of dismissal in 2017 was disproportionate. He argued that there had been no dishonesty.

 

73. The claimant was represented during the Appeal Hearing by a different CWU representative Mr Watson. The Appeal Hearing was conducted by Ms Walker.

 

74. The claimant had argued that he had suffered from mental health problems and produced a letter from his GP which confirmed that. He stated that he had one bad year and had done something silly which he now regretted. He stated that he had initially told his manager Mr Carabine lies about finishing early on Saturday 6 May 2017 because he was not well, and had been on anti-depressants."

 

He stated further that "I have no excuse and I deeply regret what I did. I have been unwell with anxiety, panic attacks and depression from June 2016."

 

75. There had been no medical evidence before Mr Brady or Ms Walker to the effect that the claimant's medical condition had made it more difficult for him to tell the truth when challenged or that it had in some way explained his decision to leave work early, while signing out at 15.20 pm and then to take elaborate steps to conceal that, including inducing a colleague to lie on his behalf. Ms Walker conducted further enquiries into this matter and obtained further email communications in relation to the matter which he forwarded to the claimant for comment. She asked Mr Brady whether he had considered the claimant's length of service. She asked Mr Brady whether he had, as alleged by Mr Watson, promised a lesser penalty to the claimant. She asked Mr Brady about his contact with HR and he confirmed that he had contacted HR.

 

76. On 11 August 2017 Ms Walker wrote to the claimant and confirmed that she had at that stage completed her rehearing of the case. She concluded that the claimant had been treated fairly and reasonably and that the original decision of summary dismissal had been appropriate in the case. The dismissal was rejected.

 

Decision

 

77. The tribunal concludes that the reason for the summary dismissal of the claimant was the claimant's conduct. The claimant had sought to argue that there had in some way been a form of conspiracy against him to remove either him or remove his post. No evidence has brought forward which could properly ground any such allegation. Furthermore the facts before the employer were not to any significant extent in dispute in the course of either the disciplinary procedure in relation to leaving his van unlocked and unattended in 2016 or in relation to him signing out at 15.20 pm when he had in fact left some hours earlier on 6 May 2017. The Tribunal is therefore satisfied that the reason for the dismissal was conduct, a potentially fair reason for the purposes of the 1996 Order.

 

78. The duty of the Tribunal is to look at all the circumstances of the case and to apply an objective test of reasonableness. The range of reasonable responses test, although a non statutory test, is of long standing and as matters stand represents settled case law in this area. While it is obviously a non statutory test, it is an assurance of objectivity in these matters.

 

79. The employer is a postal service. That carries with it certain implications for the security and privacy of mail entrusted to the respondent and to the respondent's employees. It cannot be properly viewed in the same light as delivering milk or delivering newspapers. The rules applicable to drivers were clear and unambiguous and had been signed for repeatedly by the claimant. The claimant had received a detailed briefing on the morning of the incident in 2016. He showed a significant level of disregard for the respondent's rules. He indicated that he did not read the rules. He simply signed for them. He also indicated that he could not remember what he had been told at the briefing which as indicated above, is highly improbable, given that one of his colleagues in Newry had recently been disciplined for exactly that issue. The penalty imposed in 2016 of a suspended dismissal, active for two years had been entirely reasonable. No appeal had been raised. No argument had been raised by CWU or by the claimant that it amounted to anything other than gross misconduct in all the circumstances of the case, given in particular the nature of the respondent's business.

 

80. The respondent had been entitled to take this matter into account when determining its penalty in relation to the 2017 incident.

 

81. The 2017 incident was a serious one. It had involved a deliberate falsification of the claimant's timesheet. The claimant had let himself in to an unattended office on Sunday 7 May 2017 to falsify that timesheet, in the absence of any colleagues and in particular in the absence of any line manager. The times he entered in that timesheet were clearly false and he had known they were false. He had encouraged another employee to lie on his behalf and that had resulted in disciplinary action against that fellow employee.

 

82. The claimant's argument that his mental health difficulties and stress difficulties were the reason for all this was an argument which the respondent had been entitled to dismiss. There was no medical evidence before the employer or indeed before the tribunal that the claimant's medical condition had in any way contributed to an inability to be honest in relation to the time at which he finished work and the manner in which he finished work on Saturday 6 May 2017.

 

83. The fact that Mr Brady sought advice from the Human Resources Department and the fact that the Human Resources Department had indicated that it was not the practice of the respondent to impose two simultaneously suspended dismissals does not alter the fact that the decision to dismiss had been the decision of Mr Brady. HR did not lobby Mr Brady about culpability. It restricted its remarks to procedural matters. In any event there was a full appeal at which all these issues were canvassed.

 

84. The claimant argued that some of the correspondence from the respondent in the course of the disciplinary appeal process focussed on dishonesty rather than on the actual facts of the incident on 6 May 2017. That is inevitable. The manner in which the claimant chose to deal with this charge by repeatedly misrepresenting the truth brought the issue of honesty to the forefront.

 

85. Any reasonable employer in all the circumstances of this case would have been entitled to conclude that gross misconduct had occurred and that summary dismissal was the only proper remedy. This had not been a first offence. It had involved a clear breach of the disciplinary rules and of the claimant's contract.

 

The claimant argued that minor breaches in procedure meant that the dismissal had been unfair. For example, the respondent had referred to "misconduct" rather than "gross misconduct" in the invitation to the disciplinary hearing. The respondent had complied with the statutory three-step procedure in this case; minor breaches of other procedure do not, of themselves, render a dismissal unfair. As the EAT stated in South London and Mandsley NHS Foundation Trust UKEAT/0212/14:

 

"Mr Cooper referred us to well known passages in two Court of Appeal authorities (see Bailey v BP [1980] ICR642 at 648E and Taylor v UCS Group [2006] ICR1602 at 1615E-1616A) dealing with the approach to procedural defects when a Tribunal is considering whether a dismissal was fair or not. As this Tribunal has said countless times, the crucial thing is the statutory test in section 98(4) of the Employment Rights Act 1996, namely whether in all the circumstances the employer acted reasonably in treating its reason for dismissing the employee as sufficient. A procedural defect is a matter to be taken into account but the weight to be given to it depends on the circumstances and the mere fact that there have been a procedural defect should not lead to a decision that the dismissal was unfair. The fairness of the whole process needs to be looked at and any procedural issues considered together with the reason for the dismissal as the two will impact on each other."

 

The Tribunal is satisfied that the procedure had been reasonable and fair. The claimant had been given a full opportunity to respond to the disciplinary charges in 2016 and in 2017.

 

86. The tribunal therefore concludes that on an objective test of reasonableness, the decision to summarily dismiss the claimant in all the circumstances of this case had been a reasonable decision for the employer to take.

 

87. The claim of unfair dismissal is dismissed.

 

88. The dismissal without notice was within the terms of the contract and again was a decision properly open to a reasonable employer in all the circumstances for the case. Therefore the claim of unauthorised deduction from earnings in respect of notice pay is also dismissed.

 

 

 

 

 

Vice President:

 

 

Date and place of hearing: 13 and 14 March 2018, Belfast.

 

 

Date decision recorded in register and issued to parties: