Malarky v Represented by R Milvenan, Solicitor Royal Mail Group Limited — 2019

This was a single claim of unfair dismissal. The parties agreed that the reason for dismissal was conduct, which the tribunal accepted as a potentially fair reason under section 98 of the Employment Rights Act 1996. The claimant was employed by Royal Mail as an Operational Postal Grade from 18 June 1986 until 11 August 2018 and had an unblemished disciplinary record. The dismissal arose from allegations that, while the claimant was on holiday, he telephoned the colleague covering his duty and spoke to him in a threatening or bullying manner about finishing the route early and taking parcels on overtime.

The tribunal found that the dismissing officer and the appeal officer each held a genuine belief that the claimant had committed the alleged misconduct, and that belief was based on reasonable grounds after a reasonable investigation. It accepted the evidence that JS gave changing explanations for why he had gone home during the duty, that he later said the claimant had told him not to return early and had shouted at him on the phone, and that PM said JS reported that the claimant was “shouting the odds” and that he was taking out mail he should not have been taking. The tribunal also accepted that the second part of PD1 was scheduled at four hours, that the route had been reviewed, and that the respondent was entitled to infer that the duty had opportunities to finish early.

On procedure, the tribunal held that the respondent complied with its disciplinary procedure and the ACAS Code of Practice overall. It noted that the claimant was given fact-finding and conduct meetings, was accompanied by his union representative, received the material relied on, and had an appeal hearing. Although some further enquiries were carried out after the initial conduct hearing and the claimant was asked to comment in writing rather than at another face-to-face meeting, the tribunal held that this did not make the process unfair when looked at as a whole, particularly because the claimant was given the opportunity to respond during the appeal stage.

Applying the range of reasonable responses test, the tribunal held that dismissal was within the band of reasonable responses. It accepted that the conduct found was brief and isolated and that the claimant had long service, but concluded that the behaviour fell below the respondent’s Code of Business Standards and could amount to gross misconduct under the Conduct Policy. The tribunal therefore found the dismissal fair and dismissed the unfair dismissal claim. As the claim failed, no compensatory or other monetary award was made.