Ms Kudakowski For the v Mr McArdle (legal executive) — 2019

Mr A Saroye was employed by Royal Mail Group Limited from 6 April 1998 until his dismissal without notice on 13 October 2017. The dismissal arose from a workplace incident reported on 22 May 2017, followed by sickness absence and a disciplinary process in which the respondent concluded that he had falsely reported the incident and falsely claimed injury-related absence. The tribunal allowed an amendment to add wrongful dismissal, applying the Selkent factors and noting that the same underlying facts were already pleaded.

A central issue was the use of CCTV footage. The tribunal found that release and use of the footage did not breach the respondent’s CCTV code of practice because it was used for an accident investigation and because the circumstances could amount to serious misconduct and health and safety concerns. The tribunal accepted that the first fact-finding meeting was flawed because the claimant had not been told in advance that CCTV would be used and had not seen it before the meeting, but it found that any unfairness was cured by a second fact-finding meeting under a different investigator, at which the claimant and his representative had the opportunity to view and comment on the footage.

Applying the Burchell test and section 98 of the Employment Rights Act 1996, the tribunal found that the respondent honestly believed the claimant had committed gross misconduct, had reasonable grounds for that belief, and carried out a reasonable investigation in all the circumstances. It accepted the decision-makers’ evidence that the CCTV, together with other material, was inconsistent with the claimant’s account and supported the conclusion that the incident and injury were not reported honestly. The tribunal also held that dismissal for dishonesty was within the range of reasonable responses.

On wrongful dismissal, the tribunal applied the balance-of-probabilities test and found that the claimant had dishonestly reported the incident and dishonestly claimed an injury that required sickness absence. It relied in part on the CCTV evidence and cited Ivey v Genting Casinos UK Ltd when finding that the conduct was dishonest by the standards of ordinary decent people. The tribunal concluded that this conduct undermined the duty of trust and confidence and entitled the respondent to summarily dismiss him without notice. Both claims were dismissed and no monetary award was made.