In Person v Ms S Percival, Solicitor — 2020

Mrs M Tregale was employed by Royal Mail Group Ltd as a postwoman from 28 April 1997 until her dismissal on 17 December 2019, with the incident said to have occurred on 29 October 2019 at Exeter mail centre. The dismissal followed an allegation that she threw a perstop tray at the letter frame where other staff were working, in breach of health and safety standards. The claimant said she had picked up a tray from the floor because it was a tripping hazard and placed it on the frame rather than throwing it.

The tribunal heard evidence from three coworkers, Chris Long, Sandra Trebble and Anna Mearns, whose accounts described a loud crash, the tray hitting the frame with force, and the claimant being the only person nearby. Karen Halls carried out the investigation, the claimant was interviewed on 5 November 2019, and the matter was then taken to disciplinary hearing before Jason Moore on 9 December 2019. The claimant maintained her innocent explanation and said the witnesses had assumed she had thrown the tray; she also said arthritis meant she could not throw it.

The tribunal applied section 98 of the Employment Rights Act 1996 and the Burchell questions, with reference also to Sainsbury's Supermarkets v Hitt and Iceland Frozen Foods v Jones. It found that the respondent managers were entitled to prefer the witnesses' evidence, that the investigation and procedure were fair and reasonable, and that the claimant's account contained material differences at different stages. The tribunal treated the absence of CCTV as neutral and did not accept the claimant's criticism of the tray re-enactment carried out on appeal by Jo Rysdale.

On the balance of probabilities, the tribunal found that the claimant behaved in the manner described by the witnesses, namely an intemperate and reckless throwing of the tray at the letter frames. It held that this created a risk of injury and amounted to conduct for which dismissal was a reasonable response. The tribunal therefore concluded that the dismissal was not unfair and dismissed the claim.