Mrs Kerry ButlerClaimantRoyal Mail Group LtdRespondent
Before
Employment Judge GidneyIn person for claimantMs Kelly Faulkner (instructed by Solicitor) for respondentDate 18 July 2024
JUDGMENT
[1]It is the Judgment of the Tribunal that:1.1 The Claimant’s claim unfair dismissal succeeds and is upheld;1.2 There shall be no deduction to remedy on ‘Polkey’ grounds.1.3 There shall be a deduction to remedy of 50% on ‘contributory fault’ grounds. 1 of 23
REASONS
[2]On 5th May 2023 the Claimant notified ACAS of a dispute with the Royal Mail Group, the Respondent. She received her Early Conciliation Certificate on 16th June 2023 [1]. By a Claim Form dated 20th January 2023 [2] the Claimant presented a claim of unfair dismissal, contrary to s98(4) Employment Rights Act 1996 (ERA). She asserts that her dismissal was procedurally unfair and that the sanction of summary dismissal was too harsh and unfair.[3]The Respondent’s ET3 and Grounds of Resistance dated 17th July 2023 denied the Claimant’s claim [14]. It accepted that it had dismissed the Claimant and relied on ‘conduct’ as the potentially fair reason. It asserted that all of the circumstances of the case it acted reasonably in treating conduct as a sufficient reason to dismiss the Claimant.
The Issues
[4]The issues to be determined in this case are as follows:4.1 The Respondent accepts that it dismissed the Claimant.4.2 What was the potentially fair reason for dismissing the Claimant? The Respondent relies on the Claimant’s conduct.4.2.1 Did the Respondent have a genuine belief that the Claimant was guilty of misconduct?4.2.2 The Claimant asserts that the reason for her dismissal was because she had raised a grievance against a manager, Oliver Shemmans. 2 of 234.3 If the reason for the dismissal was conduct, in all of the circumstances of the case, did the Respondent act reasonably or unreasonably in treating conduct as a sufficient reason to dismiss? In considering this issue:4.3.1 Did the Respondent have reasonable grounds to belief that the Claimant was guilty of misconduct?4.3.2 Did it carry out a reasonable investigation in all of the circumstances?4.3.3 Did the sanction of summary dismissal fall within the range of reasonable responses to the alleged misconduct?
The Evidence
[5]The Tribunal was provided with an agreed trial bundle which ran to 212 pages and a supplementary bundle running to 38 pages. During the course of the hearing a further 10 pages, relating to the driving record of Mohammed Bostan, were also added. We were provided with the following witness statements:5.1 The Claimant’s witness statement running to 5 pages;5.2 Amanjit Virk’s (dismissing officer) witness statement running to 7 pages;5.3 Clare Tebbutt (appeal officer) witness statement running to 6 pages.[6]Each of witness gave evidence from their witness statements and were subject to cross examination.
Findings of Fact
[7]I have not recited every fact in this case or sought to resolve every dispute between the parties. I have limited my analysis to the facts that were relevant to the Issues that I was tasked to resolve. I made the following findings of fact on the basis of the material before me, taking into account contemporaneous documents, where they exist and the conduct of those concerned at the time. I 3 of 23 resolved such conflicts of evidence as arose on the balance of probabilities, taking into account its assessment of the credibility of the witnesses and the consistency of their evidence with the surrounding facts.[8]The Claimant’s continuous service with the Royal Mail began on 23rd March 2015 [23]. She started work as in the role Postwoman 19th October 2015 [23] based at the Respondent’s Coombs Wood Delivery Office in Halesowen. Clause 15.2 incorporated the Respondent’s Conduct Policy [29]. Clause 15.4 stated that in the event of misconduct the Claimant could be suspended and if found guilty of a gross misconduct offence, dismissed with or without notice [29]. Clause 18 required the Claimant to comply with the Respondent’s Health and Safety Rules.[9]The Respondent’s Conduct Policy [45] set out the guiding principles for determining conduct matters. It stated [46]:9.1 The employee will be made fully aware of the evidence;9.2 No conduct action will be taken against an employee until the case has been fully investigated;9.3 No employee will be dismissed for a first breach of conduct, except in the case of gross misconduct, when the penalty will normally be dismissal without notice or payment in lieu of notice;9.4 Notification of action in line with conduct policy will only be made when sufficient facts of the case have been determined;9.5 An employee will be given an explanation for any penalty given and have the right to appeal against any conduct penalty imposed.[10]Under ‘fact finding’ the policy stated [47] ‘when it is considered that an employee's conduct or behaviour has not met the required standard, the employees manager will make a prompt and detailed investigation of the facts and may seek a more detailed explanation from the employee. It may include examination of relevant documents and a fact finding meeting where the employee has a right to be accompanied by their union representative or by a work colleague, normally from the same work location. Following the fact finding meeting, the manager should consider the information available and decide 4 of 23 whether the case can be dealt with informally, formally or closed if there is no case to answer. The manager progressing the case will invite the employee to attend a formal conduct meeting. The manager must also include copies of any notes or evidenced that we referred to during the meeting.’[11]The policy stated [48] that suspension should only be considered when a serious incident occurs or is reported to a manager. It is important that all cases of precautionary suspension only last as long as necessary. The main circumstances when it may be appropriate to consider precautionary suspension are(i) alleged inappropriate behaviour, for example refusal to carry out a management instruction, violence or threatening behaviour,(ii) alleged serious breach of conduct, for example, suspected or admitted theft or fraud, and(iii) where there is a reasonable belief that the investigation may be hampered if the employee remains in work.[12]The policy included a list of types of behaviour that are considered so serious that they would amount to gross misconduct (summary dismissal). That list included ‘deliberate disregard for health and safety and safety procedures or instructions’ [49].[13]The Respondent published ‘An employee’s guide to our business standards’ document [52] which included a section of Health and Safety [54].[14]On 28th January 2022 the parties varied the Claimant’s contract with the effect that from 10th January 2022 the Claimant’s role would change to MGV Driver on a new weekly pay of £546.41 [43]. She was responsible for driving 7.5 tonne vehicles for the Royal Mail [AV5]1.[15]The Respondent operated a Road Traffic Accident / Collision Procedure [66] which said ‘any blameworthy accident/collision and intervention should be provided. Interventions may also be provided following non blameworthy accidents/ collisions. Emphasis on positive and supportive training 1 Aman Virk’s witness statement 5 of 23 countermeasures. Following an accident/collision, the driver must notify then manager at the earliest opportunity and should follow the telephone accident reporting process where it is safe and practical to do so. On receiving a report, Royal Mail managers must meet the driver at the earliest opportunity to obtain a verbal account of the circumstances of the accident, jointly review the contents of the telephone report, explain the investigation process and the hand an RTA Letter 1 to the driver … and submit an ERICA report within 24 hours in the presence of the driver wherever possible.[16]The policy referred to ‘supportive interventions’ [69] ‘when a driver is found to be blameworthy, that should always be an intervention. The agreement encourages the use of on road driver training as a countermeasure and where the driver has had two or more blameworthy accidents in a two year. This will be mandatory. The manager will consider whether application of the conduct policy is appropriate. Royal Mail recognises genuine mistakes and misunderstandings do occur and it is not our intention such cases should be dealt with them to the conduct policy unless they are repeated’.[17]A safe driving code of conduct contained the following safety instructions [193]: - ensure good visibility when driving. - Do adjust your driving method to consider different circumstances, eg severe weather. - Do not drive at a speed that is unsuitable for the conditions.[18]In November 2021 the Claimant was involved in a road traffic accident. She pulled out of Royal Mail Premises onto the road and a vehicle travelling on the road hit her. The Claimant reported that as she ‘was coming out of the gates and the driver was speeding ridiculously, and the man was on drugs. The Driver does have the right of way if on a public road but I came out of the gate house I believe the driver was on the wrong side of the road and impacted me’ [123]. A Road Traffic Accident ERICA was started by Olver Shemmans 26th November 2021 [SB14]2. It was not fully completed and reached no conclusions as to 2 Supplementary Bundle 6 of 23 blameworthiness of either driver. The matter was dealt with by way of a post road accident assessment. On 30th November 2021 Ian Conlon, an Advanced Driver Coach, reported ‘I can confirm that Kerry Butler received a post RTC assessment yesterday, 29th November 2021. Kerry and I discussed the importance of ensuring that the last check before moving away must be a Clear Ahead check. The driving assessment was without incident and Kerry show proficiency in all aspects of the drive, giving no reason for any other interventions other than Clear Ahead check’.[19]In March 2022 the Claimant was involved in another road traffic incident, whilst pulling out of the gatehouse. She clipped another vehicle and damaged her off side wing mirror. She was told that it was determined to be a non-blameworthy accident [123]. She drove back to the depot with her wing mirror handing off, she asserts on instruction from her manager [140]. Oliver Shemmans completed a Road Traffic Accident ERICA report on [SB19] on 19th March 2022. On 1st April 2022 Ian Conlon confirmed that he had completed a further 2 days of driving training with the Claimant [77] as a result. He stated, ‘Kerry and I completed 2 days of driving that involved carry using every ROW type from motorways to rural single track roads. Kerry showed empathy and consideration for all road users from HGV's to pedestrians. Kerry and I spoke on Thursday with regards to the road traffic collision and discuss strategies and practises that would enable Kerry to carry to plan her routes so to avoid potential hazards. On Friday I asked her to perform a commentary drive. … Kerry gave a commentary whilst driving and identified all the oncoming hazards and how she's going to deal with them. This is not an easy task to complete but with the correct observations is a great skill to master and thus encourages defensive driving’.[20]Neither the November 2021 nor March 2022 RTA had been considered disciplinary matters. Both had been resolved with training delivered by Ian Conlon. There is no clear evidence that either of the incidents were deemed blameworthy by Royal Mail.[21]On 14th January 2023 the Claimant was involved in another road traffic collision. An ERICA report was completed. It stated that the Claimant had hit a 3rd party 7 of 23 vehicle in the left hand lane of a dual carriageway, in the dark and in wet conditions [81]. Mohammed Abusiddique took the first call that the Claimant made about the incident, at about 5.10am on 14th January 2023. She told him that a car and pulled out causing her to move to the left side of the road, striking a parked car [85].[22]Emily Watkins carried out an Accident and Investigation Report [86]. She recorded the Claimant’s account of the 14th January 2023 road traffic collision: ‘On Saturday morning, 14th January 2023, I was performing the 4:50am Moseley dispatch from the Mail Centre. I left on time and the weather and visibility was poor but manageable. I was keeping my speed within the limit of 30 miles an hour, possibly 28, and I was in the outside lane. Visibility was not improving and as the road was sweeping to the left I saw this car in front of me, not realising I was too far over to the left because of poor visibility due to the heavy rain, I felt the van clip the parked car. I was so shocked I continued to drive up the road where I could turn around and go back to where the collision occurred. I sat in my van to compose myself for a period when I got back to the point of the collision or saw gentlemen on the same side of the road where the car was. He appeared to be kicking the debris from the collision into the gutter or parked up in front of the car by 106 Moseley Road. It was still dark and very wet. I was unsure about leaving myself vulnerable by exiting the cab in case I got attacked. By the time I built up the courage to exit the cab, the rain had slowed down and as I left the cab, I noticed this gentleman had disappeared. I noted that the car I had the collision with was a black Skoda and the rear light was damaged, as was the rear wing and doors. I took some photographs of the damage with my camera phone’. 8 of 23[23]In interview with Emily Watkins the Claimant is recorded as saying [88] ‘As I came around the corner the visibility was very poor due to the rain. I had my wipers on full speed, but even then it was difficult to make out the road markings. I'm aware that cars are parked on the left hand side of the road and that the road changes from one lane to two lanes with cars being parked in the near side lane. I'm aware of the parked cars on the left and moved over to the right hand lane to avoid them. On this morning I move to the right hand lane but due to the poor visibility I hadn't moved over enough and I clipped the vehicle’.[24]Emily Watkins concluded her report as follows [93]: Immediate Cause: Royal Mail vehicle collided with a parted vehicle. Driver misjudged the amount of space required to pass the parked car. Underlying Cause: Heavy rain reduced visibility. Speed too fast for visibility conditions. Driver error of judgment surrounding spatial awareness when passing another vehicle. Root Cause: Lack of concentration / Driver error / poor judgment.[25]Thus the 2023 accident was deemed to be blameworthy. On 27th January 2023 the Claimant was invited to a fact finding meeting to be held on 2nd February 2023 [99]. The hearing was conducted on 13th February 2023 [105]. The meeting notes record the following [108]: EW: In your statement you mentioned that just before the collision it was raining very heavily, making visibility very poor to the point that was difficult to see the road ahead. Do you think that this contributed to the accident? KB: Probably, yes. The rain was really heavy. EW: Why do you think this contributed? KB: Because the windscreen wipers were on full speed and visibility was poor, the rain was bouncing off the road and well you're trying to look at where you're going, but it's difficult. EW: Did you consider stopping and waiting for the visibility to improve? KB: No, I wouldn't have stopped. It's not. It's not the best area to stop. 9 of 23 EW: According to your statement, you were in a state of shock and continued to drive up the road and then pulled over to find somewhere to turn around. Is this correct? KB: There was nowhere safe to stop. I couldn't park anywhere because there were cars parked along the road.[26]On 24th February 2023 the Claimant was invited to a disciplinary hearing [117]. The charge was ‘a serious breach of health and safety due to colliding the third party vehicle and causing damage for which you were found blameworthy’.[27]The disciplinary meeting took place on 28th February 2023 [121]. It was conducted by Amanjit Virk. Mr Virk quizzed the Claimant on both the prior November 2021 and March 2022 incidents [122-123]. During the disciplinary hearing Mr Virk asked ‘What assurance can you give that there will be no further road traffic collisions?’ Claimant the replied to Mr Virk [126]: ‘You cannot help accidents. Sometimes mitigating circumstances can cause these accidents. I can give you my word that I will do everything in my power not to have another accident. The probability of accidents means that there is no guarantee that it will not have another accident or have not purposefully had these accidents. I feel mortified. Why would I purposely have accidents? I cannot say I will never do that again, but accidents can happen. They can happen to anyone. I feel unfortunate that it is so early in my driving career’. The Claimant’s representative at the hearing, Sajid Sheikh, made the point that the Claimant had not seen all of the evidence from the fact find stage, or the ERICA reports, in breach of the Conduct Code [128].[28]On 13th March 2023 another driver employee of the Respondent, Mohammed Bostan was involved in a road traffic collision in the Respondent’s Knowle Delivery Office yard. The accident was considered blameworthy and Mr Bostan was issued with a written warning.[29]The Claimant provided a mitigation statement on 14th March 2023 [132]. She stated that that the November 2021 collision had been deemed nonblameworthy as the other driver had been speeding on the wrong side of the 10 of 23 road. She asked for another chance and that she would strive to be the driver that both she and the Respondent wanted her to be [133].[30]In his witness statement3 Aman Virk explained his decision-making process as follows: ‘Kerry asked why she did not stop immediately following the impact, but rather continued to drive further up the road. … In my view this was a completely unsafe act as Kerry was unsure of the exact damage to both vehicles and she would not have known whether the vehicle was safe to continue driving or not. During our conduct meeting I discussed with Kerry the previous RTAs that she had recently had, one being November 2021 and the second in March 2022. From my view this was crucial background information as it gave an indication of Kerry’s driving pattern and behaviour in the past and very recently to the time that this latest RTC occurred. What gave me cause for concern was that in discussing the previous RTCs Kerry did not accept responsibility for her previous actions. Health and Safety is paramount to Royal Mail and it is treated so seriously that they have defined intentional breaches of the health and safety standards as an act of gross misconduct …. I therefore considered the appropriate penalty to be her summary dismissal from Royal Mail.’[31]On 20th March 2023 Amanjit Virk wrote to the Claimant, dismissing her for gross misconduct [137]. He summarised the circumstances of the accident in accordance with the investigation findings (set out above). Mr Virk confirmed that after the interview he received the Claimant’s training notes following the accident on 18th March 2022, and also pictures of her accident on 25th November 2021 [139]. He quizzed the Claimant on her prior road accidents and on her explanation (in respect of the March 2022 incident) that her manager, 3 [AV27, 28, 30, 32, 37, 38, 43 & 44] 11 of 23 Oliver Shemmans, had instructed her to bring the vehicle back, with its wing mirror hanging off. Of that mitigation Mr Virk concluded [140]: ‘I cannot accept this mitigation to perform another unsafe act of driving without a wing mirror immediately after a road traffic accident with the bin lorry, which further risk her own health and safety as well as other road uses, is grossly negligent. I believe it was a risk, a serious risk of injury to herself and others. With the risk of fatality from another road traffic accident Kerry could not give a guarantee that she would not have another accident, but only give the mitigation that she did not purposefully have these accidents. I took this into consideration and could only conclude that given the nature of her accidents, the frequency of them in a two year period despite two advanced driving interventions, and the lack of willingness to accept accountability for all these accidents, I could not accept that a further road traffic accident would not occur which would not cause serious injury or fatality to herself or other road users’.[32]The dismissal letter continued [141]: ‘After consideration of all the available evidence, I believe that summary is a reasonable outcome. I have considered two year suspended dismissal with a compulsory transfer to another office, however, this would still leave scope for Kerry to drive for the business. Given the nature of each accident, I believe it is extremely lucky no one has suffered a serious injury or fatality following these accidents. …. As the Lead Distribution manager for North West Midlands, I have lost all trust and confidence in Kerry's decision making capabilities and her ability to drive safely for Royal Mail. I could not in good faith allow Kerry to drive a vehicle for this business, I believe it would be a gross breach of my duty of care to Kerry and to other road users given the nature of her accidents’. 12 of 23[33]In evidence before the Tribunal Mr Virk said that he considered that the Claimant and been guilty of a deliberate disregard for health and safety. He could not explain why training and countermeasures (the proposed way forward for blameworthy accidents) had not been explored. He accepted that no disciplinary action had followed the November 2021 accident. He had described the November 2021 accident as a ‘head on accident’ [75] but accepted in evidence that it was side on.[34]The Claimant appealed against her summary dismissal [143]. The appeal was conducted by Clare Tebbutt 5th May 2023 . The Claimant complained that she had not seen the EIRCA’s for the prior incidents and she had been told that she one was not a blameworthy incident. She asserted that normally 3 blameworthy incidents occur before a formal conduct hearing. She also said that Mr Virk had referred to three prior incidents when there had only been two. In her appeal submissions the Claimant stated [162]: ‘The decision maker tried to bring in previous investigated and non-blameworthy accidents leading to a double jeopardy consideration’.[35]Clare Tebbutt in her witness statement4 told the Tribunal: ‘Upon initial review of the papers, I note that this was the 3rd blameworthy accident that Kerry had had in the last two years. I noted that Kerry did state during the informal interview that she was mortified by what had happened and that she would do everything in her power to avoid further accident. I did accept that there was some level of remorse shown by Kerry. It is clear that Kerry had had previous accidents, however, as I stated within my appeal considerations, the earlier accidents will not be considered within my decision. However it was open and appropriate for me to consider the previous accidents as background and history. It 4 Clare Tebbutt’s statement at paragraphs 5, 36 & 41 13 of 23 shows a carelessness that Kerry has failed to correct, given that she has been found blameworthy in all previous accidents. There appeared to continue to be a lack of due care and attention throughout. It needs to be noted that health and safety is paramount at Royal Mail and it is treated so seriously that they have defined intentional breaches of health and safety standards as an act of gross misconduct in the agreed Conduct Code. I therefore upheld the decision to dismiss Kerry and advised her accordingly in my letter of the 22nd of May 2023.’[36]The appeal outcome letter, dated 22nd May 2023, was short and to the point. It did not engage with the grounds of appeal that the Claimant had raised. It said [182]: ‘In light of all the evidence, my decision is that you have been treated fairly and reasonably, and therefore I believe that the original decision of summary dismissal is appropriate in this case. Your appeal is therefore rejected and your penalty stands’. Clare Tebbutt did not engage in the Claimant’s grounds of appeal until her witness statement.[37]On 19th January 2024 Mr Bostan was involved in another road traffic accident in which he knocked down a traffic light, due to what he described as black ice. This was 9 months into his 12 month written warning. I understand that Mr Bostan remains in the Respondent’s employment.[38]In her witness statement the Claimant said that her time with the Royal Mail, she had a fully clear conduct record and during her time in the delivery office, a fully clear, non-blameworthy driving record. She stated that she was not formally told whether the January 2023 collision was blameworthy or not. She asserts (correctly) that neither of the 2022 or 2021 incidents was deemed to warrant a penalty under the Respondent’s Conduct Code. Both incidents resulted in additional training by Ian Conlon. She asserted that Mr Virk relied heavily on the two prior accidents in 2021 and 2022 and relied on the fact that she did not give him a guarantee that she would never have an accident again. This is, of course, no guarantee that any road user could ever give. 14 of 23[39]The Claimant explained that Ms Tebbutt accepted during the appeal that the 1st accident, which was relied on by Mr Virk, was not relevant to the accident that lead to her dismissal, but then said that she could not ‘unsee’ the photographs of the 1st accident. The Claimant also made the point that for gross misconduct there had to be a ‘deliberate breach of health and safety’ and she had not deliberately had the accident. She also asserted that, working from the Birmingham Mail Centre there were other non-driving roles that she should have been considered for.[40]We shall turn now to the legal principles relevant to this claim:
The applicable Law
[41]The starting point is section 98 of the Employment Rights Act 1996 (‘the Act’) which states: 98 General(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show: (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it … (b) relates to the conduct of the employee, (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer): (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case. 15 of 23[42]The correct approach5 for the Tribunal to adopt in considering section 98(4) of the ERA is as follows:(1) the starting point should always be the words of [s 98(4)] themselves;(2) in applying the section an Industrial Tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the Industrial Tribunal) consider the dismissal to be fair;(3) in judging the reasonableness of the employer's conduct an Industrial Tribunal must not substitute its decision as to what the right course to adopt for that of the employer;(4) in many (though not all) cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;(5) the function of the Industrial Tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band, it is unfair'.'[43]The ACAS Code of Practice on Disciplinary and Grievance procedures sets out matters that may be taken into account by tribunals when assessing the reasonableness of a dismissal on the grounds of conduct, as follows: 'Employers and employees should raise and deal with issues promptly and should not unreasonably delay meetings, decisions or confirmation of those decisions. Employers and employees should act consistently. Employers should carry out any necessary investigations, to establish the facts of the case. Employers should inform employees of the basis of the problem and give them an opportunity to put their case in response before any decisions are made. Employers should allow employees to be accompanied at any formal disciplinary or grievance meeting. Employers should allow an employee to appeal against any formal decision made.' 5 Iceland Frozen Foods v Jones [1982] IRLR 439 16 of 23[44]For guidance on the level of investigation and on the Respondent’s belief that an act of misconduct has occurred, the guidelines provided in British Home Stores v Burchell6 still applies: ‘What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.”[45]As at the time of the Claimant’s dismissal, the Tribunal is to ask(i) did the Respondent believe the Claimant was guilty of the misconduct alleged,(ii) if so, were there reasonable grounds for that belief,(iii) at the time it had formed that belief had it carried out as much investigation into the matter as was reasonable in the circumstances, and(iv) was the decision to summarily dismiss the Claimant within a range of reasonable responses open to an employer in the circumstances7?[46]It will be a very rare case where an employer can reasonably take the view that there could be no explanation or mitigation which would cause him to alter his decision to dismiss8.[47]An act which constitutes gross misconduct is one that undermines the relationship of trust and confidence inherent in the employment relationship9. In order for gross. In order for conduct to amount to gross misconduct, it must 6 [1979] IRLR 379 7 Yorkshire Housing Ltd v Swanson [2008] IRLR 609 8 Sillifant v Powell Duffryn Timber Ltd [1983] IRLR 91 9 Neary v Dean of Westminster [1999] IRLR 288 17 of 23 involve either deliberate wrongdoing or gross negligence10. This is a question of both fact and law.[48]The employer cannot be said to have acted reasonably if he reached his conclusion in consequence of ignoring matters which he ought reasonably to have known and which would have shown that the reason was insufficient11.[49]If it is established that the dismissing officer had a reasonable belief in the Claimants’ guilt, it is necessary to consider whether his response to that guilt fell within a reasonable range of responses. In considering the severity of the sanction, it is important that the tribunal does not ask whether a lesser sanction would have been reasonable but asks instead whether the sanction of dismissal was reasonable12. The Tribunal should take care not to substitute its own view for that of the employer as to the reasonableness of the investigation or the dismissal. The question is whether the investigation and the dismissal fell within a range of reasonable responses which had reasonable employer would adopt in the circumstances13.[50]Finally, a procedural error at the dismissal stage can be remedied on appeal14.[51]I turn now to my conclusions. The Tribunal’s Conclusions[52]The first task is to determine the reason for the dismissal. Section 98(1)(a) ERA to show the reason for the dismissal. The Respondent relies on conduct, a potentially fair reason to dismiss, pursuant to s98(2)(b) ERA. The Claimant asserts that the real reason for her dismissal by Mr Virk was retribution of revenge for a grievance that she had submitted against one of his managers, 10 Sandwell & West Midlands Birmingham NHS Trust v Westwood [2009] UKEAT 0032/09 EAT 11 W Devis & Sons Ltd v Atkins [1977] IRLR 314, HL 12 Securicor Ltd v Smith [1989] IRLR 356, CA 13 Sainsburys Supermarkets v Hitt [2003] IRLR 23 14 Taylor v OCS Group Ltd [2006] EWCA Civ 702 18 of 23 Mr Shemmans. I reject the Claimant’s proposed explanation for her dismissal. It was not put to the Virk in cross examination that his actions had been motivated by revenge. I accept his witness evidence that he felt it was not safe for the Claimant to drive again for Royal Mail, and that, in the circumstances, he dismissed her for what he considered to be an act of misconduct. The Respondent, has, in my Judgment, established that conduct was the reason relied on by the Respondent for dismissing the Claimant.[53]For the same reasons as set out above, I find that Mr Virk had a genuine belief that the Claimant was guilty of a misconduct offence, such that he could dismiss her. His rationale was set out both in his letter of dismissal and in his witness statement (both quoted above). Reasonable grounds to sustain belief misconduct had occurred?[54]Did Mr Virk have in his mind reasonable grounds to sustain his belief that gross misconduct had occurred? In my judgment he did not. He treated both of the prior incidents as blameworthy with conflicting evidence as to whether they were determined to be blameworthy. He did not have any evidence that Royal Mail had deemed both to the blameworthy and he failed to establish what the decision of blameworthiness was for both accidents. The Claimant at the time had been told that she was not considered blameworthy. She believed a blameworthy finding had been made on one. Both incidents were treated as training, conducted by Ian Conlon, rather than misconduct issues.[55]Mr Virk placed great emphasis on the photographs of the first incident, which did show substantial damage, but the photographs were not probative of the accident’s cause. He described the accident was ‘head on’ when the photographs themselves demonstrate that it was not. He dismissed the Claimant’s explanation that that the cause of that accident had been the other driver, who was under the influence of drugs and driving on the wrong side of the road. Once he had decided to rely on this incident, he should have investigated it by, at the very least, speaking to the original investigator to 19 of 23 discuss the Claimant’s assertion that it was not her fault and that she was not blameworthy. Mr Virk failed to take those steps.[56]In respect of the March 2022 accident, Mr Virk placed emphasis on the fact that the Claimant drove the vehicle after the accident with a missing side mirror, which, it is clear, he considered the Claimant’s key misjudgement (rather than the accident itself) on the grounds that he considered it unsafe to drive the vehicle with a missing wing mirror. What Mr Virk did not do is investigate or consider the Claimant’s explanation that she had been instructed by her manager to drive the vehicle back to the depot.[57]The above two failings, recited above, made Mr Virk’s belief in the Claimant’s guilt for the 2023 incident unreasonable. Mr Virk and Ms Tebbutt both concluded that the Claimant should not have driven to the first safe place to stop after the impact, however the Claimant’s evidence was that visibility was very poor and that it would not have been safe to stop in the road, effectively blocking it.[58]The matter does not end there. To be gross misconduct, Mr Virk had to have grounds to conclude that the Claimant had been guilty of a deliberate disregard for health and safety. He sought to determine this by inviting the Claimant to confirm that she would never have an accident again. This was an absurd line of enquiry as no driver could ever give that undertaking. The Claimant, fairly, said that she would try her best not to have any more accidents, but said she could not say she would never have another accident. Mr Virk took this answer and concluded ‘with the risk of fatality from another road traffic accident Kerry could not give a guarantee that she would not have another accident, but only give the mitigation that she did not purposefully have these accidents’. Mr Vik’s reliance on this answer, as a key part of his rationale for treating this accident as a sufficient reason to dismiss the Claimant, was not the actions of a reasonable employer.[59]The Respondent relies on those parts of its policies that refer to driving at a suitable speed for the conditions, however, here is no evidence that speed was 20 of 23 a factor in this accident. Emily Watkins concluded that the root cause for the accident, whilst driving in very heavy rain at night, was ‘driver error of judgment surrounding spatial awareness when passing another vehicle’. This evidence, from the investigator, does not suggest excessive speed was a factor, nor does not speak to a deliberate disregard for health and safety or taking deliberate risks, and therefore, does not speak to gross misconduct.[60]Mr Virk took it upon himself to do all that he could to ensure that the Claimant never drove again for Royal Mail. As he believed that as there was no role in the Respondent that was non-driving (or would never have a driving opportunity at some point) gross misconduct was appropriate. He concluded ‘I could not in good faith allow Kerry to drive a vehicle for this business, I believe it would be a gross breach of my duty of care to Kerry and to other road users given the nature of her accidents’. The Claimant told me that she would have returned to sorting mail in the depot. This alternative to dismiss was not fairly considered by Mr Virk.[61]In my Judgment Mr Virk did not act reasonably in treating conduct as a sufficient reason to dismiss the Claimant. Whilst Ms Tebbutt did provide more detail in her witness statement, her rejection of the Claimant’s appeal contained no analysis at the time and at no point did she engage with the Claimant’s grounds of appeal. Ms Tebbutt failed to correct any of the defects in the analysis of Mr Virk. Having told the Claimant that the prior accidents were not relevant, she nonetheless relied on them against the Claimant’s interests. She concluded that the Claimant was at fault for not immediately stopping her lorry at the accident site but driving past to find a safe space to stop, unreasonably rejecting the Claimant’s evidence that such a course of action would have created a greater risk of harm. Neither Mr Virk nor Ms Tebbutt visited the accident site to consider whether the Claimant’s mitigation merited consideration. Ms Tebbutt supported the finding that the Claimant had been guilty of a deliberate disregard for health and safety, contrary to conclusion of the investigator. 21 of 23[62]In all of the circumstances it is my Judgment that the Claimant was unfairly dismissed by the Respondent. Polkey Reduction and Contributory Fault[63]I consider Mr Virk’s failings in analysis as substantive and fundamental. It is not possible to construct what would have happened had Mr Virk not made them. In the circumstances I do not make any reduction on the grounds that had any procedural errors been corrected, the result of gross misconduct, would have been the same.[64]That said, a misjudgement of distances by the Claimant was the cause of the road traffic incident accident. The Claimant did:64.1 Continue driving at 28 to 30 miles an hour in very poor visibility;64.2 Misjudge the distances between her vehicle and a parked car, causing her vehicle to collide with it.[65]I consider that there is an element of contributory fault, which, taking all of the circumstances and all of the Claimant’s mitigation into account, I assess at 50%. Remedy.[66]Given my findings on liability and contributory fault, I invite the parties to seek to agree the appropriate level of compensation. In the event that no agreement can be reached, a hearing for remedy has been listed for 12th August 2024. 18th July 2024 …………………………………………… 22 of 23