Mr G AdamsonClaimantRoyal Mail Group Limited UPON APPLICATION made by a letter dated 17 August 2020 to reconsider the judgment under rule 71 Employment Tribunals Rules of Procedure 2013 dated 12 July 2019, and without a hearingRespondentDate 3 March 2022
JUDGMENT
[1]It is in the interests of justice to consider the reconsideration application out of time.[2]It is in the interests of justice to revoke the decision, dated 12 July 2019, to reject the claim against Royal Mail Group Limited only because the claimant had not gone through the early conciliation procedure with ACAS and failed to provide an early conciliation number.[3]The claim is accepted from 20 August 2019, which is the date when the Employment Appeal Tribunal first received a copy of the ACAS early Conciliation certificate.
REASONS
[1]The claimant’s application, dated 17 August and received at the Employment Tribunal on 19 August 2020, for reconsideration of my decision to reject his claim arises out of a rule 3(7) Employment Appeal Tribunal (“EAT”) Rules 1993 letter sent to the claimant on 6 August 2020, at the behest of His Honour Judge Auerbach. Judge Auerbach helpfully sets out the background to this case in the said letter.[2]The claimant presented a claim to the Employment Tribunal (“ET”) on 3 July 2019. He identified the respondents as Royal Mail Group and Mr Bolton. I rejected the claim because it did not provide an ACAS early conciliation number and no exemption applied. As set out above, that was communicated to the claimant in a letter dated 12 July 2019.[3]The claimant then contacted ACAS and obtained evidence of that, by way of an email of 14 July 2019, including a reference number. He then, on 15 July 2019, applied to the tribunal for a reconsideration of the rejection.[4]By a further email of 1 August 2019, the Tribunal informed the claimant that the reconsideration was rejected because the ACAS reference number was not a valid ACAS EC certificate number, and such a number was required for each proposed respondent.[5]At the EAT, the claimant clarified that he is not in fact seeking to pursue a separate claim against Mr Bolton, and also referred to his letter of 15 July in that regard.[6]The proposed appeal before the EAT was against my decision of 12 July 2019. Judge Auerbach concluded that such appeal was not arguable. The Tribunal was right to reject the claim because an ACAS EC certificate number was required and none had, at that point, been provided. Though the claimant clarified that he was not seeking to claim separately against Mr Bolton, that was still required in respect of Royal Mail Group.[7]Although the proposed appeal was not against the refusal of a reconsideration on 1 August 2019, Judge Auerbach also commented that this decision also appeared to have been correct as the claimant had still not provided an ACAS EC certificate number for Royal Mail Group at that point. That number is not the ACAS reference number issued when first contact is made, but the number on the certificate issued by ACAS when the early conciliation process formally ends, which is not identical. That certificate, and that number, were only issued on 14 August 2019.[8]Although the claimant sent a copy of that certificate to the EAT which was attached to his notice of appeal on 20 August 2019, the claimant did not send it at the time to the ET. He also did not make a further reconsideration application to the tribunal, relying on that certificate and its number.[9]Judge Auerbach noted that it would be open to the claimant to make a further reconsideration application to the Employment Tribunal out of time, relying on that certificate and its number.[10]Hence, this application for a further reconsideration, out of time, of my decision to reject the claim on 12 July 2019.[11]The ET received this reconsideration application, dated 17 August 2020, on 19 August 2020.[12]In addition to attaching the letter from the EAT, dated 6 August 2020, and the ACAS early conciliation certificate, dated 14 July 2019 until 14 August 2019, the claimant indicated that he no longer wishes to claim against the second respondent.[13]No reason was, at that time, given for the lateness of the application, although it can be readily inferred that it came about directly as a result of the letter from the EAT dated 6 August 2020. Further, the claimant initially applied for a reconsideration on 15 July 2019 which was rejected on 1 August 2019.
Relevant law
[14]A claimant will not normally be allowed to bring a claim in an ET unless he has informed ACAS of the complaint, thereby giving ACAS the opportunity to try to resolve the case by ‘early conciliation’ (EC).[15]The EC scheme is set out in Ss.18A and 18B of the Employment Tribunals Act 1996 (ETA), and in the Early Conciliation Rules of Procedure (‘the EC Rules’) contained in the Schedule to the Employment Tribunals (Early Conciliation: Exemptions and Rules of Procedure) Regulations 2014 SI 2014/254 (‘the EC Regulations’).[16]If either party does not wish to engage in conciliation, or if settlement is not reached within the applicable timeframe, or if the ACAS conciliator considers that it will not be possible to settle the claim, then the conciliator will issue an EC certificate as evidence that S.18A(1) ETA has been complied with — S.18A(4) ETA/rule 7 EC Rules.[17]This certificate is vital where the claimant wishes to proceed with his claim, as he cannot start proceedings without it in any case to which the EC requirement applies — S.18A(8).[18]The certificate bears a unique reference number — rule 8(d). This number must be marked on the claimant’s claim form when completed to avoid the claim being rejected under rule 10 of the Tribunal Rules.[19]Rules 10 and 12 of the Tribunal Rules (as amended by the Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2014 SI 2014/271) set out certain ‘technical’ and ‘substantive’ grounds on which a claim (or part of a claim) will be rejected.[20]They include: when an Employment Judge considers that the claim, or part of it, institutes ‘relevant proceedings’ — i.e. proceedings that would normally be subject to ACAS conciliation, as in this case because it is a claim of unfair dismissal — but the form contains neither an EC number nor confirmation that one of the EC exemptions applies; or the form confirms that one of the EC exemptions applies but it does not — rule 12(1)(c)-(d).[21]If a claim, or part of it, is rejected for a technical defect under rule 10 of the Tribunal Rules, or a ‘substantive’ defect under rule 12, a claimant may apply for a ‘reconsideration’ of the decision under rule 13.[22]The grounds for any reconsideration are only those set out in Rule 70, namely that it is necessary in the interests of justice to do so.[23]If the application is not refused on paper the tribunal will send a notice to the parties setting a time limit for any response to the application by the other parties and seeking the parties’ views on whether the application can be determined without a hearing — rule 72(1). The notice may also ‘set out the judge’s provisional views on the application. The matter will then proceed to a hearing, unless the employment judge considers — having regard to any response to the application — that a hearing is ‘not necessary in the interests of justice’ — rule 72(2). If the reconsideration proceeds without a hearing, the parties shall be given a reasonable opportunity to make further written representations — rule 72(2).[24]The application must meet the following procedural requirements, set out in rule 13(2): i. it must be in writing ii. it must either explain why the decision is said to have been wrong or rectify the defect iii. it must be presented to the tribunal within 14 days of the date on which the notice of rejection was sent, and iv. if the claimant wishes to request a hearing, this must be stated in the application.[25]Where the judge decides that the original rejection was correct but that a defect has been corrected, the claim shall be treated as presented ‘on the date that the defect was rectified’ — rule 13(4).[26]Provisional view: In accordance with rule 72, notice was sent out to the parties with a provisional view on 4 September 2020.[27]The provisional view was that it is in the interests of justice to revoke the decision to reject the claim against Royal Mail Group Ltd and accept the claim against that respondent only. However, the claim should be accepted as of 20 August 2019 at which point the EAT first received a copy of the ACAS Early Conciliation Certificate.[28]Comments provided: The parties were requested to set out their comments in writing, if they had any, within 14 days from the date this letter was sent to them. The parties were also asked to say whether they agree that the application can be dealt with on paper.[29]Both parties agreed that the application should be dealt with on paper.[30]The claimant provided an explanation for the delay in his application. In an email, dated 17 September 2020, the claimant explained that the delay came about as a result of the lengthy appeal process in the EAT.[31]The respondent, among other things, pointed out that:a. There was a delay of over a month, after the claim was first rejected on 12 July 2019, before the claimant obtained a valid EC certificateb. In obtaining the said EC certificate the claimant must have been aware that it was a prerequisite for him to progress his claimc. Rather than seek a further application for reconsideration the claimant sent the said certificate to the EATd. the respondent is potentially prejudiced because it may face a claim relating to a decision which occurred some considerable time ago Decision on reconsideration application[32]The first matter to consider is whether to permit the application for consideration to proceed out of time. As set out above, the tribunal received this application, dated 17 August 2020, on 19 August 2020. Rule 71 provides that an application shall be presented in writing within 14 days of the date on which the written record of the original decision was sent to the parties. Rule 5 provides that the Tribunal may extend any time limit specified in the Rules. The claimant initially applied for reconsideration on 15 July 2019 which was rejected on 1 August 2019. Instead of reapplying for reconsideration the claimant appealed to the EAT. That was clearly an error on the claimant’s part, as pointed out by Judge Auerbach. However, it indicates that the claimant was engaging in the process, even if he did so incorrectly. The rules and the application of the rules are complicated and can be confusing. Eventually, as a result of information provided by Judge Auerbach, the claimant found his way back to the ET. In these circumstances, I consider that it is in the interests of justice and in accordance with the overriding objective to consider the application for reconsideration out of time.[33]Turning to the substantive application, the reason for the initial rejection of the claim has now been remedied. In other words, the claimant has now obtained a relevant ACAS early conciliation number and certificate. Although, as the respondent points out, the certificate and number were not obtained until the claim was issued there would be little point in insisting claimant issue a further claim form.[34]Because the claimant has now obtained the necessary certificate and number, I consider that it is in the interests of justice to accept the claim. As I have said, the law and rules are complicated, even for lawyers. The claimant is a litigant in person. The respondent was put on notice of the claim, both by the initial rejection and also when the EC process commenced on 14 July 2019, very shortly after the claim was rejected.[35]However, the claim should be accepted only from 20 August 2019, at which point the EAT first received a copy of the ACAS early conciliation certificate. This is when I consider that the defect to have been rectified. Although the certificate was sent to the EAT, rather than the ET, the EAT had all the relevant documents by this time.[36]Once the response is received the claim will be listed for a preliminary hearing to determine whether or not the Tribunal has jurisdiction to consider the claim out of time.
The Claim
[1]By his Claim Form, which was received by the Tribunal on the 3 July 2019, the Claimant brings a claim of unfair dismissal against the Respondent arising from his summary dismissal on the 27 April 2019.
The Issues
[2]The issues in the Claimant’s claim of unfair dismissal were agreed before EJ Harris on 9 April 2021 and are as follows:a. What was the reason for the Claimant’s dismissal on the 27 April 2019? The Respondent asserts that it was a reason related to conduct, which is a potentially fair reason for dismissal under section 98(2) of the Employment Rights Act 1996.b. Did the Respondent hold a genuine belief in the Claimant’s misconduct on reasonable grounds and following as reasonable an investigation as was warranted in the circumstances?c. Was the decision to dismiss a fair sanction, that is, was it within the range of reasonable responses open to a reasonable employer when faced with these facts?d. Did the Respondent adopt a fair procedure?e. If it did not use a fair procedure, would the Claimant have been fairly dismissed in any event and/or to what extent and when?f. If the dismissal was unfair, did the Claimant contribute to the dismissal by culpable conduct?g. In the event of the Claimant succeeding in his claim of unfair dismissal, should the Tribunal order reinstatement or reengagement?h. In the event of the Claimant succeeding in his claim of unfair dismissal and being awarded compensation, what Basic Award is payable and would it be just and equitable to reduce the Basic Award because of any conduct of the Claimant before the dismissal? If so, to what extent?i. If there is a compensatory award, how much should it be? The Tribunal will decide: i. What financial losses has the dismissal caused the Claimant? ii. Has the Claimant taken reasonable steps to replace his lost earnings, for example by looking for another job? iii. If not, for what period of loss should the Claimant be compensated? iv. Is there a chance that the Claimant would have been fairly dismissed anyway if a fair procedure had been followed, or for some other reason? v. If so, should the Claimant’s compensation be reduced? By how much? vi. Did the ACAS Code of Practice on Disciplinary and Grievance Procedures apply? If so, did the Respondent or the Claimant unreasonably fail to comply with it? If so is it just and equitable to increase or decrease any award payable to the Claimant and, if so, by what proportion up to 25%? vii. If the Claimant was unfairly dismissed, did he cause or contribute to dismissal by blameworthy conduct? If so, would it be just and equitable to reduce his compensatory award? By what proportion? Evidence[3]The Tribunal heard evidence on behalf of the Respondent from:a. Andrew Masterman, Delivery Line Manager;b. Joe Miranda, an Independent Casework Manager;[4]The Tribunal heard Claimant give evidence on his own behalf.[5]The Tribunal has had the benefit of a bundle of agreed documents of 170 pages. Documents referred to in this Judgment are denoted by their page number in square brackets. Finding of Fact[6]The Claimant was employed by the Respondent as an Operational Postal Grade (“OPG”) from the 1 March 2017 to the 27 April 2019. He was summarily dismissed by the Respondent on the 27 April 2019 for alleged misconduct. The misconduct alleged against him was smoking in his Royal Mail van contrary to the Respondent’s Driver’s Manual and Smoking Policy.[7]The Respondent is a British public limited company which provides postal and courier services. It employs in the region of 137,000 people throughout the UK.[8]It is supported by a centralised Human Resources service which is physically located in Sheffield but which provides advice and support to managers throughout the UK in relation to staffing issues and HR policies and procedures.[9]A subset of the centralised HR resource in Sheffield is a team of approximately 25 Independent Casework Managers. They are independent of local management structures and their function it is to hear appeals by employees against certain sanctions including dismissals as well as complex grievances.[10]The Respondent publishes a Conduct Policy which outlines the approach to be taken if an employee does not meet the expected standards of conduct. It is updated from time to time. This has been provided in the bundle at [38]. It prescribes that the authority to give warnings and serious warning lies with ‘first and second line level’ managers. More serious penalties including dismissal should be given by second level managers. The policy provides a list of examples of types of behaviour which, it says, “in certain circumstances could be judged to be gross misconduct”. The list includes “Deliberate disregard of health, safety and security procedures or instructions”.[11]The Claimant had previously received ‘counselling’, or coaching, from Julian Baker, one of the managers, in December 2018. This coaching was on Royal Mail processes and procedures, with specific focus on smoking whilst on duty. This coaching session was put in place after a member of the public reported seeing the Claimant smoking whilst on duty, in a company vehicle on 29 December 2018. The Claimant signed a note, following this counselling session, confirming it had taken place and that he understood what had been discussed [72]. The Claimant confirmed “he would not ever smoke in a Royal Mail Van again”. He also confirmed that he understood that “smoking while sitting in a Royal Mail van was potentially a dismissal offence”.[12]On 5 April 2019, the Claimant’s delivery partner, Luke Kennedy, made a verbal report about the Claimant smoking in a company vehicle. This report was made to the late shift manager, Stuart Hardie. On 6 April, Mr. Hardie reported this to the Delivery Office Manager, Brian Gunter.[13]Mr. Gunter requested a written statement be provided. As Mr. Kennedy was on holiday until 15 April, no statement was taken until then.[14]The Claimant was placed on suspension on 15 April.[15]Mr. Gunter’s manager, Nick Jukes, Delivery Line Manager, carried out a fact finding meeting on 18 April. The Claimant was invited to this meeting and attended. Notes of the meeting are at [82] and [83]. During the meeting, the Claimant admitted smoking in a company vehicle.[16]Mr. Jukes passed the case to Andrew Masterman, Delivery Line Manager, as Mr. Jukes felt it might warrant a penalty that was above his grade to issue.[17]Mr. Masterman carried out a Formal Conduct Interview on 23 April. The Claimant was invited to this meeting and attended. At the meeting the Claimant accepted he had been smoking in a company vehicle. He said he was doing so in order to save time. He confirmed he had read and understood the Respondent’s policy on smoking.[18]The Claimant was invited to a conduct decision meeting on 26 April. The Claimant was unable to attend and the meeting took place on 27 April. At the meeting, the Claimant was dismissed for:a. Failure to adhere to Royal Mail Policyb. Breaking the Law whilst at work for Royal Mailc. Bringing Royal Mail’s name into disrepute[19]The Claimant appealed his dismissal. The appeal meeting took place with Joe Miranda, an Independent Casework Manager. The Claimant attended this meeting, which took place on 13 May.[20]At his appeal hearing, the Claimant said he wished to retract everything he had said in relation to this dismissal. The Claimant raised the issue that his dismissal was in fact due to him not being a member of CWU, which is the relevant Trade Union. It was the Claimant’s case that the Trade Union had brought pressure on Luke Kennedy in order to make Mr. Kennedy give a statement.[21]When pressed regarding the issue of whether he now denied that he had been smoking in the company vehicle, the Claimant accepted that he had been smoking in a company vehicle almost every day since January 2019.[22]Mr. Miranda asked Mr. Masterman for clarification of the investigation process. Mr. Masterman explained the delay in the report being made was due to no appropriate person being available when Mr. Kennedy made his verbal report. I accept this as a reasonable explanation. The written report only confirmed the verbal report in writing.[23]Mr. Miranda did not seek to interview Mr. Kennedy as he did not feel that this was necessary in light of the Claimant’s admissions that he had been smoking in a company vehicle.[24]The Claimant’s appeal was dismissed in relation to:a. Failure to adhere to Royal Mail Policyb. Breaking the law whilst at work for Royal Mail[25]The appeal was allowed in respect of: a. Bringing Royal Mail’s name into disrepute[26]The Claimant’s appeal against his dismissal therefore did not succeed. The Law – Unfair Dismissal[27]Under section 98(1) of the Employment Rights Act 1996 (“ERA”) it is for the employer to show the reason for the dismissal and that it is either for a reason falling within section 98(2) or for some other substantial reason of kind such as to justify the dismissal of the employee.[28]An employee can bring a complaint of unfair dismissal to the Tribunal if they have completed at least two years continuous employment at the date of termination in accordance with section 108 ERA.[29]Section 111 ERA further provides that when bringing a complaint, the claim form must be presented to the Tribunal within 3 months of the effective date of termination, (or such further time as the Tribunal believes to be appropriate if it accepts that it was not reasonably practicable to present the claim within the 3 month period).[30]The Tribunal has been referred to the test for the minimum standards to be expected in a misconduct dismissal set out in British Home Stores Ltd v Burchell [1978] IRLR 379.[31]The Tribunal should also have reference to the ACAS Code of Practice on Discipline and Grievance Procedures 2015, and take account of the whole process including any appeal: Taylor v OCS Group Ltd [2006] IRLR 613.[32]Applying Burchell, and Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23, the questions for the Tribunal are:a. Did the Respondent genuinely believe that the Claimant was guilty of misconduct? This overlaps with the task of identifying the principal reason for dismissal.b. If so, was that belief based on reasonable grounds? This considers the information available at the time of the dismissal and appeal decisions and the Tribunal is evaluating whether the view that there was misconduct is a view within the band of reasonable responses.c. Had the employer carried out such investigation into the matter as was reasonable? Again this is a question of the band of reasonable responses. Relevant are the nature of the allegations, the position of the Claimant and the size and resources of the employer. It is wrong to expect a meticulous investigation of the kind that would be done in a criminal enquiry.d. Did the employer follow a reasonably fair procedure? The ACAS Code is relevant here, as are the employer’s own procedures. The key point is that an employer acting fairly will give the employee sufficient details of the allegations and the evidence in enough time before the disciplinary hearing to enable the employee to have a fair chance to respond, and there will be a right of appeal to another person if the employee is dissatisfied with the decision. Common errors leading to unfairness include deciding the case on evidence that is not shown to the employee, finding the employee guilty of allegations which are different from those put to him, failing to allow an appeal to an independent person (which can be another manager), or making further enquiries after a disciplinary hearing and failing to go back to the Claimant with the result of those enquiries before taking the final decision.e. If all those requirements are met, was it within the band of reasonable responses to dismiss the Claimant rather than impose some other disciplinary sanction such as a warning? This is an area where Tribunals fall into the trap of substituting their own view for that of the employer. Reference to the employer’s disciplinary policy is likely to be important, particularly to any definition of gross misconduct in cases where it is dismissal for a first offence. Arguments based on inconsistency with other cases are difficult to pursue for Claimants unless the circumstances really are comparable in a way that means it is unreasonable to impose a more severe punishment on the Claimant: Paul v East Surrey District Health Authority [1995] IRLR 305. Further, dismissal for misconduct is more likely to be fair if the Claimant has had a history of warnings and is on a final warning. Where it is a dismissal for gross misconduct the Tribunal has to be satisfied that the employer acted reasonably both in characterising it as gross misconduct, and then in deciding that dismissal was the appropriate punishment: Brito-Babapulle v Ealing Hospital NHS Trust [2013] IRLR 854. This makes it important that the employer has considered any mitigating factors. Discussion Was the dismissal of the Claimant by the Respondent for the potentially fair reason of conduct?
Discussion
[33]I accept that the Respondent dismissed the Claimant for a reason relating to his conduct for the purposes of s.98(2)(b) of ERA. There was initially no dispute that was the reason for dismissal and no other reason was put forward by the Claimant until his appeal hearing. There is no evidence before the Tribunal that there was any other motive in the mind of the Respondent. Did the Respondent have a genuine belief that the Claimant was guilty of the allegations which led to dismissal?[34]I accept that both Mr. Masterman and Mr. Miranda genuinely believed the Claimant’s guilt of the allegations. There was a report from Luke Kennedy, in which he stated that the Claimant had been smoking in a company vehicle. The Respondent was aware that the Claimant had done this before in December 2018, and was entitled to take this into account when forming a belief on whether the alleged misconduct had occurred. In the investigatory meeting, the Claimant had admitted the misconduct. Did the Respondent conduct a reasonable investigation?[35]The question for the Tribunal then turns to the application of section 98(4), and whether, in all the circumstances of the case, the Respondent acted unreasonably in treating the conduct relied upon as a sufficient reason to dismiss the Claimant. The Tribunal must avoid substituting its own view of the matter for that of the Respondent. The role of the Tribunal is to assess objectively whether the Respondent’s approach fell within the range of reasonable responses.[36]The ACAS Code states that “It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case.” The amount of investigation that is reasonable will depend on all of the facts and circumstances of the case. In a case such as this one, where the conduct in question was admitted, the extent of the investigation reasonably required is likely to be less than in a case where allegations are denied or substantially disputed. Notwithstanding the Claimant’s admissions, the Respondent carried out a meticulous investigation at all stages of the process. The Claimant was given ample opportunity to provide his account of the matter and to comment on evidence gathered.[37]The Claimant did not challenge the validity of the Respondent’s evidence until his appeal hearing. He was also frank in his admission that he had been smoking in the company vehicle, and that he knew that this was in breach of the company policy.[38]I have seen no evidence that would lead the Tribunal to conclude that the Respondent’s evidence or method for gathering that evidence was in any way untoward or suspicious. In any event, the Claimant admitted the misconduct at the first hearing.[39]It is not for this Tribunal to comment on the Trade Union that operates within the Respondent, nor to make findings about the practices of that Trade Union nor any of its members.[40]Given the Claimant’s frank admissions, I find that the investigation was reasonable, given the nature of the allegations, the position of the Claimant and the size and resources of the employer. Was the Respondent’s belief that the Claimant had committed misconduct based on reasonable grounds?[41]There were reasonable grounds for the Respondent’s belief that the Claimant had committed the conduct set out in the conduct notifications. He admitted the conduct. He admitted having awareness of the no smoking rules which were breached and having received briefs on these rules.[42]The Respondent’s rules around smoking in company vehicles are clear, and it is clear that this can be viewed as gross misconduct. It is also against the law under the Health Act 2006. I find that it is reasonable for the Respondent to view employees who break both the Respondent’s own rules and the law as having committed gross misconduct. Was the decision to dismiss within the band of reasonable responses?[43]What must be determined is whether dismissal lay within the range of reasonable responses open to an employer of the Respondent’s scale and nature. It is not relevant whether this Tribunal would have imposed a lesser sanction in the circumstances.[44]The Claimant has argued that no reasonable employer would impose dismissal in the circumstances. The Claimant has cited the fact that he was given ‘counselling’, which amounts to an informal penalty, when he committed the same misconduct in December 2018. He argues that this shows that the Respondent viewed smoking in a company vehicle as a minor infraction, for which dismissal would be unreasonable.[45]I reject this argument. The Claimant was fully aware of the rules around smoking in company vehicles and had promised in writing that he would not do it again after December 2018. The fact that the Claimant was given a warning about the same misconduct only four months before the events which led to his dismissal make the misconduct more serious, not less.[46]The Claimant has argued that he should not have been viewed by the Respondent as having broken the law. The openly stated his view in evidence that “I didn’t break the law”. He put forward his view that smoking in a company vehicle is common practice and therefore the law is unenforceable. He questioned Mr. Masterman and Mr. Miranda as to whether they were police officers or members of the Health and Safety Executive, as in his argument, only those persons could say the Claimant had broken the law.[47]I find this argument wholly without merit. A person abides by or breaks the law by their conduct. Breaking the law is not contingent on being caught doing so by a police officer or member of the Health and Safety Executive. Smoking in a company vehicle is against the law and the Respondent was entitled to take this into consideration.[48]The Claimant has also raised the issue that the statements of Mr. Masterman and Mr. Miranda use the word “prohibited” while the actual policy says “not permitted” in relation to smoking in company vehicles. I accept the explanation given by both of them that they consider these terms to have the same meaning. I see no difference in the Claimant doing something that was “prohibited” and doing something that was “not permitted”.[49]The Claimant also contends that he did not deliberately breach the Respondent’s smoking policy. I find this argument without merit. The Claimant understood that he was not allowed to smoke in company vehicles and yet chose to do so. This is, in my view, a deliberate act.[50]As discussed above, the Claimant’s conduct was sufficient to amount to gross misconduct. The Respondent’s Conduct Policy [43] gives examples of what may be viewed as gross misconduct. Included on this list is “Deliberate disregard of health, safety and security procedures or instructions”. The Claimant was also aware that such a penalty could be imposed following his counselling in January 2019. As such, I find that the Respondent was entitled to impose a range of sanctions, up to and including summary dismissal. The decision to dismiss the Claimant for his misconduct was not outside the band of reasonable responses. Was dismissal of the Claimant by the Respondent procedurally fair?[51]The ACAS Code says this about an employer’s notification of the disciplinary case to be answered. a. This notification should contain sufficient information about the alleged misconduct … to enable the employee to prepare to answer the case at a disciplinary meeting. It would normally be appropriate to provide copies of any written evidence, which may include any witness statements, with the notification.[52]The procedure followed by the Respondent was both fair and compliant with the ACAS Code of Conduct on Disciplinary and Grievance Procedures. Any flaws, such as the missing telephone number or initial failure to provide the notes with the letter of 16 May [118] were minor in nature and did not undermine the key principles of fairness as set out in the Code.
Conclusion
[53]The Respondent dismissed the Claimant for a potentially fair reason relating to his conduct. Applying section 98(4), in all the circumstances of the case, the Respondent acted reasonably in treating that conduct as a sufficient reason to dismiss the Claimant. The Claimant was not unfairly dismissed.