Paul Capaldi v Royal Mail Group Limited — 2023

The claimant was dismissed for gross misconduct after the respondent concluded that he had intentionally delayed mail by dumping or hiding Door to Door items on 4 February 2021. The tribunal found that conduct was the reason for dismissal and that the dismissal decision-makers genuinely believed the claimant had committed misconduct. It rejected the allegation that the claimant's health and safety complaint about the reinstatement of lapsing was the reason or principal reason for dismissal.

The automatically unfair dismissal claim under ERA s.100(1)(c)(ii) failed because there was a health and safety representative in place and the tribunal found it was reasonably practicable for the claimant to raise the lapsing concern through that route. The tribunal also found that the dismissing officer was not aware of the health and safety complaint when he decided to dismiss, and that the appeal decision was not made because of that complaint.

The ordinary unfair dismissal claim succeeded. The tribunal identified deficiencies in the covert monitoring operation, the investigation of alternative explanations, the treatment of evidence from other employees, and the claimant's opportunity to comment before the dismissal decision. Although the appeal cured some procedural deficiencies and was otherwise procedurally fair, it did not cure the substantive flaws in the monitoring investigation, which was the foundation of the allegation. The tribunal found there was no reasonable investigation and the belief in misconduct was not held on reasonable grounds.

On remedy issues addressed in the judgment, the tribunal declined to make a Polkey reduction because the dismissal was substantively unfair rather than only procedurally unfair. It also made no contributory fault reduction because it had not made findings of blameworthy or culpable conduct by the claimant and would not base such a reduction on speculation.