Mr S Millan v Represented by Ms C Borthwick -15 Friend Royal Mail Group plc — 2021

The tribunal found that Mr S Millan was dismissed for conduct after he left Royal Mail vehicle E41 unattended on 12 August 2020 with the keys in the ignition, the driver’s door unlocked and the window partly open while mail was in the trailer. The claimant accepted the core facts at the internal meetings, including that he had made a deliberate decision to leave the keys in the vehicle after carrying out what he described as a “dynamic risk assessment”. The tribunal also noted that he had a live serious warning from July 2019 and that he was familiar with the Security Rules for Drivers and the respondent’s security standards.

Applying the section 98 ERA framework and the Burchell approach, the tribunal held that the respondent had a genuine belief in misconduct, reasonable grounds for that belief, and had carried out a reasonable investigation. It accepted that the investigation included the fact-finding stage, a formal conduct meeting, further enquiries of Gary Watson, Gary Knox and Kevin Vaughan, and an appeal heard by an independent casework manager. The tribunal rejected the criticism that the investigation was unreasonable because witness statements were obtained by email rather than signed hard copy, because the relevant emails were plainly from the work email addresses and their authorship was not disputed.

On fairness, the tribunal held that dismissal fell within the range of reasonable responses. It found it reasonable for the respondent to treat the conduct as gross misconduct in a regulated postal business where security of mail and vehicles was central to the respondent’s obligations. The tribunal accepted that the claimant had breached clear security rules requiring vehicles to be locked and keys kept on the driver’s person, and it accepted the respondent’s view that the mail and vehicle had been exposed to risk. The tribunal also rejected arguments that the sanction was undermined by the claimant being allowed to complete the Coldstream run before suspension, or by the length of service and mitigation points raised.

The tribunal also found the procedure fair. It accepted that Gary Watson’s email of 13 August 2020 was not sent to the claimant before the fact-finding meeting, but held that it was provided before the later conduct meeting and that this caused no prejudice. It further held that there was no procedural flaw in the timing of the fact-finding notes, that Malcolm Aien was an appropriate and independent manager to hear the case, and that the appeal process was properly conducted. The claim for unfair dismissal was therefore dismissed and no remedy was awarded.