A postman, a taxi, and a bumpy ride to unfair dismissal – a lesson in conducting a fair disciplinary process

Employment Tribunals considering a dismissal for misconduct will scrutinise the fairness of the disciplinary process. It is important for employers to follow a clear, transparent, and reasonable procedure.

A recent claim against Royal Mail highlights the importance of conducting a thorough and impartial investigation before the decision to dismiss is made. The Employment Tribunal (“ET”) ruled the dismissal unfair due to Royal Mail’s failure to follow a reasonable disciplinary process. While this is only an ET decision and so not binding for other cases, it is a useful example of what is expected of employers in terms of procedure.

Case Facts

Mr. Weston worked for Royal Mail as a postman for over 16 years. His role was to deliver letters and parcels on foot. In February 2022, he injured his hip at work, which led to a period of sick leave until May 2022 when he returned to full duties. Between May and November 2022, he also worked as a taxi driver outside of his Royal Mail shifts. His managers were aware of this.

Between November 2022 and January 2023, Mr. Weston was placed on light duties due to his hip injury as he was experiencing a flare up. When he experienced a further flare up in February 2023, his further request for light duties was turned down. As a result, he remained on sick leave pending the results of an MRI scan.

In April 2023, during a meeting with his manager, Weston was asked about his taxi driving. He confirmed that while he wasn’t driving his taxi at the time, he may consider returning to it in the future. A further Occupational Health Report from May 2023 determined that Weston was unfit to work due to severe symptoms of anxiety and depression.

Weston resumed his taxi driving job on 12 June 2023 while still on sick leave and receiving half pay from Royal Mail. He attempted to call his manager to advise him that he had started driving his taxi but his manager did not answer and after two failed calls, Weston made no further attempts to contact his manager.

On June 15, 2023, Weston was seen by two Royal Mail managers driving his taxi, and one of them took a photo. One of those managers was Mr Corrigan who later had a call with Weston where he accused him of operating a taxi service while on sick leave.

Corrigan was then appointed to lead the investigation into Weston’s conduct which included allegations of abusive language and aggressive conduct relating at least in part to the phone call he had had with Weston on 15 June 2023. Following the investigation into these allegations, and a disciplinary hearing, Weston was dismissed on 16 September 2023 for being dishonest about his ability to work, being abusive and aggressive, and having unnecessary absences from work. Despite an appeal, his dismissal was upheld.

The Tribunal, however, found that the dismissal was unfair.

An Unfair Dismissal

The Tribunal found several key issues with how Royal Mail handled the case:

1. Flawed Investigation: The investigation was unreasonable, particularly because Mr. Corrigan, the delivery office manager who had made the allegations, was appointed to lead the investigation. This created a conflict of interest, which compromised the impartiality of the process.
2. Failure to Fully Investigate: Royal Mail did not thoroughly investigate the alleged misconduct, such as the specifics of the abusive language or the details of the phone call between Weston and Mr. Corrigan. Additionally, they failed to adequately consider Weston’s medical fitness to perform his Royal Mail duties versus his ability to drive a taxi.
3. Assumptions About Fitness to Work: Royal Mail assumed that Weston’s fit note meant he was unfit for “any work,” without verifying this with his GP or Occupational Health advisor. They also assumed that his ability to drive a taxi meant he could resume his postman duties, without further investigation or medical evidence.

While the Tribunal acknowledged Weston’s culpability for working as a taxi driver during times when he was contractually obligated to work for Royal Mail, it ruled that the dismissal was unfair due to procedural errors and made an award of £3,010 in Weston’s favour.

Lessons for Employers: Activities while off sick

It is common for employers to be concerned when they discover that during a period of sickness absence an employee is working elsewhere, going on holiday, or engaging in social activities such as a “night out”. Employers often take the view that if an employee is unfit for work, they must be unfit to do anything else, or to participate in life. This can be a costly mistake.

Employers should remember that an employee will be signed off as unfit to do their job – that does not mean they are unfit for all work far less that they are unfit to go to the pub. Where an employee is off with work stress it may actually be beneficial for their health to go on holiday or to socialise, and employers should not take a dim view of this.

There will certainly be cases where an employee’s activities are inconsistent with their claimed reason for absence, or are likely to prolong their absence, and these cases can be dealt with through the usual processes. Employers should remember though that they are not medical experts and therefore should not leap to assumptions about what an employee should or should not be able to do, in light of their health condition. Medical evidence will be needed.

However, in many cases there will be no inconsistency and employers should not leap to the conclusion that the employee is lying to them, and/or to their GP, about their health and their fitness for work.

Employers should also check the rules for employees working elsewhere – if permission is needed, and has not been obtained, then that matter can certainly be taken further formally.

Lessons for employers: The Importance of a Fair Process

This case emphasises several further important lessons for employers regarding disciplinary procedures:

• Impartial Investigations: It’s crucial that disciplinary investigations are unbiased and conducted by someone not involved in the incident. In this case, the conflict of interest between Mr. Corrigan and Weston undermined the fairness of the investigation, as Mr. Corrigan was the alleged “victim” of Weston’s alleged abusive language.
• Reasonable Investigations: Employers should conduct a reasonable investigation into allegations of misconduct, ensuring all relevant information is gathered. Failing to investigate the specifics of the misconduct or consider the medical aspects of the case led to the Tribunal’s finding of unfair dismissal.
• Clear Communication: Employers should have clear policies regarding secondary employment and communicate these expectations effectively. If Royal Mail had clearer policies, Weston’s situation could have been addressed more proactively.
• Fair Decision Making: Even if an employee is guilty of misconduct, the employer must follow a fair disciplinary process. The Tribunal found that had Royal Mail followed a fair procedure, the dismissal could have been justified. Instead, due to procedural errors, the dismissal was deemed unfair.

Conclusion

This case serves as a stark reminder of the importance of conducting a fair and thorough disciplinary process. Although Weston was determined to have been guilty of misconduct, Royal Mail’s failure to conduct a reasonable investigation and follow due process led to an unfair dismissal finding.

Our team of expert employment lawyers is on hand to assist with any queries you have.

This update contains general information only and does not constitute legal or other professional advice.