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Unfair Dismissal and Gross Misconduct: What to consider before dismissal?
The Employment Appeal Tribunal (“EAT”) in the case of Mbola v Royal Mail has recently considered whether the Claimant was unfairly dismissed for failing to deliver two parcels, which he later admitted to lying about his initial explanation when first asked why he failed to deliver the parcels.
The Claimant worked for Royal Mail (“the Respondent”). The Claimant failed to take out two tracked items on his delivery on the 20th of March 2019. The Claimant had planned to go back and pick those parcels up later that day and deliver them the same day, although he forgot to do so.
The Respondent’s view is the Claimant’s failure to deliver these parcels was an intentional act to delay the delivery of the mail, something which is deemed as gross misconduct under the Respondent’s disciplinary rules and code of conduct. Further, the Respondent contends that the Claimant was untruthful and told the Respondent he had delivered the parcels when in fact he had not. When the Claimant was asked why he did not deliver these parcels in the disciplinary meeting, his explanation was that he had forgotten to return to collect the items as he received a telephone call from social services regarding him not being able to see his children following the breakdown of his marriage – this caused the Claimant to be stressed out and his mind was elsewhere and therefore forgot about the parcels.
The Claimant was dismissed for gross misconduct and subsequently brought a claim to the Employment Tribunal (“ET”).
Section 94 of the Employment Rights Act 1996 (“ERA”) provides for the right for an employee not to be unfairly dismissed by their employer. An employer has to establish a potentially fair reason for dismissal under section 98(1) ERA and whether a dismissal is fair or unfair depends on whether the organisation acted reasonably or unreasonably in deciding to dismiss the employee for that reason (section 98(4) ERA).
In determining whether a dismissal is fair, the Employment Tribunal will consider procedural fairness and whether a fair procedure was followed (i.e. the ACAS Code of Practice) and whether the employer acted reasonably in treating the reason as a sufficient reason for dismissal, for example did the decision to dismiss fall within the range of reasonable responses. This test applies to both the decision to dismiss and to the investigation which led to that decision. The Tribunal must assess substantive fairness having regard to well known principles established in case law, including satisfying the conditions of the Burchell Test.
At first instance, the Employment Tribunal held that the Claimant’s dismissal was fair. The ET held that the Claimant admitted to committing the offence and his dishonesty to the manger in saying he did deliver the parcels when he in fact did not resulted in the dismissal falling within the range of reasonable response available to the Respondent.
On appeal, the EAT allowed the appeal, and held that the ET was wrong in concluding the dismissal was fair when it had mis recorded that the Claimant had admitted to the misconduct alleged. There are in essence two allegations of misconduct in this claim, one of which the Claimant denies throughout, namely “the intentional delay of mail” and the other of being untruthful when asked if the parcels had been delivered, which in itself may not amount to gross misconduct. The ET did not deal with this point and so the matter has been remitted back to a different ET for a rehearing to consider the facts.
This case highlights that for an employer to fairly dismiss an employee, the decision to dismiss must be within the range of reasonable responses and the employer should consider whether in the circumstances, taking into account personal circumstances, whether such “misconduct” does indeed amount to gross misconduct warranting immediate dismissal. Dismissal should always be seen as a final sanction, and other avenues explored first where appropriate to do so to avoid claims of unfair dismissal.