Mr W Santos Ramos v Royal Mail Group Ltd: 2301076/2019

EMPLOYMENT TRIBUNALS

Case No 2301076/2019

Between

Mr W Santos RamosClaimant

Royal Mail Group LtdRespondent

Before

Employment Judge Hyams-Parish

In person for claimant

Date 17 February 2022

JUDGMENT

At all material times the Claimant was not a disabled person within the meaning of s.6(1) Equality Act 2010. For this reason, the Claimant cannot pursue his claims of disability discrimination which are dismissed.

REASONS

Claim

[1]By a claim form presented to the Tribunal on 25 March 2019, the Claimant brings claims of disability discrimination and unfair dismissal.

[2]The claims of disability discrimination were not particularised in the claim form itself but were supplied pursuant to an order by Regional Employment Judge Davies at a case management hearing. It is clear from these particulars that the Claimant brings claims pursuant to sections 13, 15, 20/21, 26 and 27 Equality Act 2010 (“EQA”). The alleged acts of discrimination occurred between 14 November 2018 and the Claimant’s dismissal on 21 February 2019. This is the material time referred to at paragraph 15 below.

[3]The claims are denied in their entirety by the Respondent. The Respondent further denies that the Claimant was disabled within the meaning of s.6(1) EQA.

Hearing

[4]The purpose of this Preliminary Hearing was to determine whether the Claimant was at all material times a disabled person within the meaning of the EQA, thereby allowing him to proceed with his claims for disability discrimination.

[5]This hearing was conducted remotely using Skype. A face to face hearing was not possible due to recently issued Presidential Guidance that all “in person” hearings should be cancelled until further notice in view of the Covid19 pandemic.

[6]At the beginning of the hearing, I explained that if the case were to proceed using Skype, I would reach a determination in the same way as I would at a face to face hearing. I asked each party if they consented to the hearing being conducted using Skype and both parties confirmed that they did.

[7]I was provided with a bundle of documents for the hearing extending to 78 pages, which included an impact statement from the Claimant, together with GP and occupational health notes.

[8]The Claimant confirmed that he had received and had read all of the documents referred to, including the skeleton argument provided by the Respondent’s Counsel.

Relevant law

[9]The law on the definition of “disability” can be found in section 6 EQA, with further assistance provided in Schedule 1 of the same.

[10]Section 6(1) defines disability as follows: “A person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”

[11]The above definition poses four essential questions for me to answer:a. Does the Claimant have a physical or mental impairment?

b. Does that impairment have an adverse effect on the Claimant's ability to carry out normal day-to-day activities?

c. Is that effect substantial?

d. Is that effect long-term?

[12]The definition of “long term” can be found in paragraph 2(1) of Schedule 1 to the EQA which says as follows: (1) The effect of an impairment is long-term if it:-a. has lasted for at least 12 months

b. is likely to last for at least 12 months, or

c. is likely to last for the rest of the life of the person affected.

[13]The term “substantial” is defined in section 212(1) EQA as meaning “more than minor or trivial”.

[14]Guidance on the definition of “disability” is contained in a document produced by the Office for Disability Issues called “Guidance on matters to be taken into account in determining questions relating to the definition of disability” (“the Guidance”). The Guidance includes the following extracts: [A3] The definition requires that the effects which a person may experience must arise from a physical or mental impairment. The term mental or physical impairment should be given its ordinary meaning. It is not necessary for the cause of the impairment to be established, nor does the impairment have to be the result of an illness. In many cases, there will be no dispute whether a person has an impairment. Any disagreement is more likely to be about whether the effects of the impairment are sufficient to fall within the definition and in particular whether they are long-term. Even so, it may sometimes be necessary to decide whether a person has an impairment so as to be able to deal with the issues about its effects. [A6] It may not always be possible, nor is it necessary, to categorise a condition as either a physical or a mental impairment. The underlying cause of the impairment may be hard to establish. There may be adverse effects which are both physical and mental in nature. Furthermore, effects of a mainly physical nature may stem from an underlying mental impairment, and vice versa. [A7] It is not necessary to consider how an impairment is caused, even if the cause is a consequence of a condition which is excluded. For example, liver disease as a result of alcohol dependency would count as an impairment, although an addiction to alcohol itself is expressly excluded from the scope of the definition of disability in the Act. What it is important to consider is the effect of an impairment, not its cause – provided that it is not an excluded condition. [C3]……‘likely’, should be interpreted as meaning that it could well happen. [C4] In assessing the likelihood of an effect lasting for 12 months, account should be taken of the circumstances at the time the alleged discrimination took place. Anything which occurs after that time will not be relevant in assessing this likelihood. Account should also be taken of both the typical length of such an effect on an individual, and any relevant factors specific to this individual (for example, general state of health or age). [C7] It is not necessary for the effect to be the same throughout the period which is being considered in relation to determining whether the ‘long-term’ element of the definition is met. A person may still satisfy the long-term element of the definition even if the effect is not the same throughout the period. It may change: for example activities which are initially very difficult may become possible to a much greater extent. The effect might even disappear temporarily. Or other effects on the ability to carry out normal dayto-day activities may develop, and the initial effect may disappear altogether. [B4] An impairment might not have a substantial adverse effect on a person’s ability to undertake a particular day-to-day activity in isolation. However, it is important to consider whether its effects on more than one activity, when taken together, could result in an overall substantial adverse effect. [B5] For example, a person whose impairment causes breathing difficulties may, as a result, experience minor effects on the ability to carry out a number of activities such as getting washed and dressed, going for a walk or travelling on public transport. But taken together, the cumulative result would amount to a substantial adverse effect on his or her ability to carry out these normal day-to-day activities.

[15]The time at which to assess whether the Claimant is disabled (i.e. whether there is an impairment which has a substantial and long-term adverse effect on normal day-to-day activities) is the date of the alleged discriminatory act. This is what is referred to as the “material time” in this Judgment. An employment tribunal is entitled to infer, on the basis of the evidence presented to it, that an impairment found to have existed by a medical expert at the date of a medical examination was also in existence at the time of the alleged act of discrimination.

[16]In reaching a determination on this issue, I must bear in mind that the burden is on the Claimant to prove that he was disabled during the material time. I have based my conclusions below on the evidence before me at the hearing, which was the Claimant's oral testimony, including his impact statement, and the documentary evidence referred to during the hearing.

Background facts

[17]It is not in dispute that the Claimant was employed by the Respondent between 23 April 2012 and 21 February 2019. He was employed as an Operational Postal Grade at its Catford Processing Unit. The Respondent contends that the Claimant was dismissed for(i) taking mail home;

(ii) mail delivery not being completed on a given day;

(iii) not reporting to a manager that mail delivery had failed; and

(iv) delivering mail on a rest day without his line manager’s knowledge. On 10 December 2018, the Claimant was suspended from work pending an investigation into the above allegations. On 31 January 2019, the Claimant attended a disciplinary hearing, as a result of which he was dismissed with effect from 21 February 2019.

Evidence

[18]The Claimant gave evidence under oath during the hearing. He had provided an impact statement and adopted the content of that statement as his evidence in chief. He was then cross examined by Counsel for the Respondent.

[19]The Claimant said that he had suffered with anxiety and depression since November 2017 although he said it was “not formally referred to as depression until 7 August 2018”. The reference to 7 August 2018 was a letter to his GP from an organisation called Croydon GP Hub. It was a very brief letter, essentially recording the fact that the Claimant had visited the GP Hub, on which the words “Depression, work related stress, requesting Med 3” were provided under the heading “Diagnosis/Reason for attendance”.

[20]The Claimant told me at this hearing that both conditions are likely to last for the rest of his life. The Claimant said that he was taking Sertraline (an anti-depressant) and also Omeprazole to manage the stomach ulcers he said were as a result of the stress and anxiety he felt as a side effect of the Sertraline.

[21]On the subject of the impact on day to day activities, the following is an extract from his impact statement (sic): 5. Without the medication I would simply not be able to function. Prior to being diagnosed and being prescribed medication, from around November 2017, I had great difficulty motivating myself to get out of bed on a morning which resulted in me having a couple of days off work, as well as being late on occasion. 6. I became very demotivated and lazy. There were days when I would not shower, and I stopped cooking for myself, relying on fast food which I had delivered to my home as I did not want to go outside. I found myself becoming incredibly anti-social and stopped talking with my friends and family, ultimately resulting in my brother and sister no longer speaking with me. 7. I stopped playing sports and going to the gym. I used to go to the gym 5 times a week and had quite a muscular build, but since January 2018 I have barely been to the gym. 8. I became a very angry person, and even the smallest thing could cause me to argue with the limited number of people I came in to contact with. I regularly fell out with my partner over what I now see as very trivial issues. 9. At the end of June 2018, things became really bad, and I remember going to sleep one evening wanting to go to sleep and never wake up. It was at this point that I went to see my GP. 10. Despite my GP’s intervention and being prescribed medication, my mental health continued to deteriorate. My self-esteem was incredibly low, I became more and more anti-social just sitting in my room which was in a shared house and spent no time with my house mates. In around 26 June/July 2018, I began suffering with panic attacks. These attacks made me feel the need to constantly move around the room, my heartbeat would be really fast, and I would struggle to breathe. Sometimes, following such an attack, I would feel almost paralysed and unable to move for several minutes. It was around this time that I also started to suffer with insomnia. 11. I had my financial responsibilities taken away by my partner Lee as I was not paying bills or rent, instead spending money on random items online to try and combat my depression. He took control of my finances ensuring that bills etc were paid on time as I couldn’t do this myself. 12. Since around September 2018 I have felt unable to use public transport at peak hours. I get extremely anxious and claustrophobic, and as a result I do my grocery shopping after 10pm when I know the stores and streets will be less busy. 13. I was absent from work during this period until November 2018, however, on my return things got worse. I had a panic attack at work on 8th December 2018, the day that resulted in my suspension. 14. Following this I developed OCD and became agoraphobic, staying locked in my flat for days. I was taking in excess of 10 cold showers a day in an attempt to suppress my anxiety, would spend the rest of the time asleep, often 16 hours a day, and began having suicidal thoughts. 15. I believe that my medical conditions had a substantial impact on my ability to carry out normal day to day activities, including sleeping, personal hygiene, and socialising, even having suicidal thoughts when things got really bad.

issues.

[22]The Claimant's GP notes (“the GP notes”) were included in the bundle, going back to August 2016. Despite the Claimant saying in evidence that he suffered from anxiety and depression since November 2017, the GP notes did not refer to a diagnosis of anxiety and depression until 3 July 2019. Prior to 25 June 2018 there is no hint of the Claimant presenting with symptoms of workplace stress, anxiety or depression.

[23]The GP notes show that on 25 June 2018, the Claimant went to his GP and was diagnosed with “stress at work”. He was given a fit note stating that he was not fit for work for the period from 25 June 2018 to 9 July 2018. The GP notes record the following: Works as postman Increasing job responsibilities with no extra time Causing him a lot of pressure Ongoing for 2/12 now Not sleeping and worried about work Not enjoying life at the moment as so tired Doesn’t think he’s depressed Spoke with occupational health who advised him to see GP Has a union – advised him to liaise with them Med3 for 2/52 Review if not better

[24]The Claimant attended his GP on 5 and 19 July 2018 to renew his fit note. Both stated “stress at work”.

[25]At around this time, the Claimant was referred to Occupational Health (“OH”) by his employer, triggered by the number of absences from work. He had a telephone consultation with OH on 18 July 2018. In a report, also dated 18 July 2018, there is the following extract (sic): Thank you for referring Mr Walacy Santos Ramos who has triggered stage 3 of the Royal Mail sickness absence policy. I undertook a telephone consultation today. Mr Ramos informs me that he is currently off sick with work-related stress, for the last four weeks due to alleged bullying and harassment at work, as he was coming late to work, since he has shifted his residence six months back and the daily commute is now 90 minutes one way. He had applied for some place near his new home address, but he was only offered part-time hours, which he feels he will not be able to manage financially. Due to the stress at work he feels low in mood, socially isolated, low self-esteem and confidence, he was seen by his GP, who advised him to take some time off work. Mr Ramos is not on any medication and is not been referred for counselling. Apart from this he has no other underlying medical condition and is not on any regular medication. [NOTE: the letter makes reference to periods of sickness absence from June 2017 to May 2018, none of which relate to workplace stress] All were due to self-limiting conditions. The term “work-related stress” is often used to describe a variety of symptoms, behaviours and interpersonal disputes or pressures at work, leading to absence all sub- optimal work performance. It is my opinion that this absence is primarily associated with non- medical issues and that the causes of his absence are predominantly related to the ongoing situation. Once any issues are able to be resolved it is anticipated that any adverse health effects he may be experiencing should reduce. Given this I would suggest that Management invite him in to see how his concerns can be addressed in order to facilitate his return to work…..

[26]Under the heading “Disability Advice” OH gives an opinion that the Claimant is not covered by the EQA which I interpret to mean an opinion that the Claimant was not disabled.

[27]The GP notes on 9 August 2018 show that the Claimant visited his doctor again and was diagnosed with stress at work and recorded the following comments: Getting work Not sleeping No suicidal thoughts Would like sleeping tablet Will contact IAPT Examination Low suicide risk Talkative Promethazine for 2 weeks

[28]The GP notes on 31 August 2018 show that the Claimant was diagnosed with stress at work and recorded as follows (sic):- Req zopiclone as promethazine made anxiety worse Also req another med3 for 1m Planning to move to S London in 2w where his job will be transferred Looking forward to move Good support network Not called IAPT yet

[29]The GP notes on 01 October 2018 record a diagnosis of stress at work and state the following (sic):- Medication Citalopram 10mg tablets. One to be taken each day 28 tablet Patient attends due to ongoing anxiety Has started IAPTS and is engaging No thoughts of self-harm Anxiety most in the morning Discussed starting medication – pt now feels that would be helpful. For low dose citalopram Discussed side effects – especially possible GI Review next week to follow up

[30]The Claimant visited his GP on 5 November 2018 and was again diagnosed with stress at work.

[31]By January 2019, the Claimant had changed GP. On 11 February 2019, the Claimant visited his new GP and he was diagnosed with stress at work. By this time the Claimant had been suspended and had been invited to a disciplinary hearing. The GP notes for that visit record the following (sic): Only just registered Has been living in Purely, works for Royal Mail. Anxiety and depression for about 8-9 months. Saw GP in Nov 18 and started on Citalopram 10mg od, started it but after a few days stopped it as SEs- Tiredness/restless but mainly stopped as was made to rtw on 15.11.18, advised if not would lose his job On 10.12.18 was suspended as had panic attack and took some mail home to deliver the next day, concerned re constructive dismissal, lx underway Restarted citalopram after suspension but it ran out on 10.1.19- would like to restart Also, would like some Zopliclone, helped++before, tried OTC meds and another from GP made him more anxious. Advised revisit this request when his notes have come through, Also, will need medical report/copy of notes for employer at some point Advised he needs to see Occ Health Agrees to IAPT self-referral Restart Citalopram

[32]On 21 February 2019, the day the Claimant was dismissed, he visited his GP and was diagnosed with stress at work. The following was recorded in his GP notes (sic): see below states was unfairly dismissed from work today he had an absence from work 6/12 with stress on background of bullying and harassment at work according to him he states he had discussed with trade union at time which were not helpful main stress and low mood came from this states client with citalopram given now is after a doctor’s report we do not have notes explained that we cannot do backdated report for previous period of time as we at present do not have his notes also there should be appeal process that he follows at work including occupational health and enlisting the help of trade union which I believe he should pursue also suggest he consider citizens advice bureau will fu with us in a couple of weeks before citalopram runs out

[33]On 25 February 2019, therefore outside the material time, the Claimant attended a meeting with OH, notwithstanding by this time the Claimant had been dismissed. The report provided by OH concluded, at that point, that the Claimant was suffering from severe anxiety and depression. Despite this, the report also stated, “In my opinion Mr Walacy Santos Ramos is not covered by the Equality Act currently, however this could alter in the future”. In the report the Claimant is recorded as having provided the following answers to questions:- Daily Routine, (sleep pattern, washing, dressing, Sleep remains daily activities etc.) poor Manges all other ADL Household activities (laundry cooking, ironing, No issues making beds) etc. Activities outside the home (hobbies, gardening, Not much shopping, social activities). General activities (walking, climbing stairs, No issues sitting, driving)

[34]I concluded that the authors opinion was that, despite the diagnosis of anxiety and depression, the Claimant was still not disabled within the meaning of the EQA because the impairment did not have a substantial and long-term adverse effect on the Claimant's ability to carry out day to day activities.

[35]Under cross examination by the Respondent’s Counsel, the main focus was on the diagnosis by the Claimant's GP during the material time and why it said work related stress rather than anxiety and depression. The Claimant rather contradicted himself during evidence on this point, at one point suggesting that he had agreed with his GP that she would not record the diagnosis as anxiety and depression because of what he suggested was the stigma associated with being depressed. When asked why he did not mention to his GP the impact on his ability to carry out day to day activities, as stated in his impact statement, he said that depression was for lazy people and that is why he did not inform his GP of the impact of his condition. He also said in evidence that he didn't at that time think he had depression. I asked the Claimant why he had not obtained a report from his GP if he felt that his records did not accurately reflect his diagnosis and presentation at the time, given that he must have known that such evidence would be important for this hearing. He said that he had asked for a report, but he had not received anything. I asked why he did not chase it up, but all the Claimant could say is that he did try to obtain one. Submissions

[36]I considered carefully the submissions made by both parties before reaching my decision. In her submissions, Counsel for the Respondent referred to the following three cases: ▪ J v DLA Piper UK LLP

[2010] IRLR 936

▪ Gallop v Newport City Council

[2014] IRLR 211

▪ Herry v Dudley Metropolitan Council

[2017] ICR 610

[37]The Respondent submits that any occupational stress that the Claimant was experiencing at the material time did not meet the criteria for a mental impairment but instead was a reaction to life events. She referred me to paragraph 56 in Herry v Dudley Metropolitan Council in which Richardson HHJ said, “although reactions to adverse circumstances are indeed not normally long lived, experience shows that there is a class of case where a reaction to circumstances perceived as adverse can become entrenched; where the person concerned will not give way or compromise over an issue at work, yet in other respects no or little apparent effect on normal day to day activities. A doctor may be more likely to refer to the presentation of such an entrenched position as stress than as anxiety or depression. An Employment Tribunal is not bound to find that there is a mental impairment in such a case”. Analysis, conclusions and associated findings of fact

[38]Having considered the evidence very carefully, I find that the reason the Claimant's GP recorded work related stress on the GP notes, as opposed to anxiety and depression, was because the Claimant was reacting to work related problems. He continued to visit his GP for work related issues and there continued to be a diagnosis of work-related stress.

[39]I do not accept as credible the Claimant's evidence that he reached an agreement with his GP that s/he would avoid noting any reference to anxiety and depression. I note that later in 2019 the diagnosis anxiety and depression is stated on his GP notes and therefore I am not sure why the agreement not to refer to depression, and the rationale for it, did not continue past July 2019. If what the Claimant said was true, I believe he would have recognized the crucial importance of obtaining a report from his GP, particularly having disclosed his GP notes and noting the absence of any reference to depression, so that his GP would have been given the opportunity to comment on, and importantly explain that in his or her view s/he considered the Claimant to be suffering from anxiety and depression, notwithstanding the diagnosis actually recorded on the GP notes. I did not find the Claimant's explanation for not obtaining a report from his GP particularly persuasive; indeed, I doubted whether what the Claimant said in evidence on this issue, was true or accurately reflected the real reason for not obtaining a report.

[40]Before concluding on the issue whether the Claimant suffered from a mental impairment, I considered the substantial adverse effect the Claimant said that the impairment had on his ability to carry out day to day activities. Here there was a stark contrast between the Claimant's impact statement and the commentary on the GP notes. I do have significant doubts about what is now claimed by the Claimant in his impact statement for three reasons: firstly the Claimant is not sufficiently precise in his impact statement and his evidence about when, and for how long, the Claimant suffered the adverse effects referred to; secondly there are inconsistencies between the commentary in the GP notes and the impact statement; and thirdly, there are significant matters contained in the impact statement which one would have thought would have been recorded in the GP notes.

[41]On the inconsistency issue, I see that there is a comment in the GP notes of the Claimant's visit to his GP that the Claimant “doesn’t think he is depressed”. The Claimant also says in his impact statement “I remember going to sleep one evening wanting to go to sleep and never wake up” suggesting that he did not want to live. Yet in the GP notes of his visit to the GP on 9 August 2018, the following is noted: “no suicidal thoughts” and “low suicidal risk”.

[42]The Claimant said that in June/July 2018 he started suffering panic attacks, his heart rate would increase, and he would struggle to breathe. He also says that he would feel paralysed and unable to move for several minutes. These concerns raise the kind of health issues that one would have expected to be on the GP notes. There is no mention of these issues in the GP notes for the Claimant's visits to the GP in June, July or August 2018. I find that there are no GP notes of these issues because the Claimant did not mention them and I believe it most likely that he did not mention them because he was not experiencing these adverse effects at that time, contrary to what the Claimant said in his impact statement.

[43]In the same vein, the Claimant said in his impact statement that after December 2018 he “developed OCD and became agoraphobic, staying locked in my flat for days. I was taking in excess of 10 cold showers a day in an attempt to suppress my anxiety, would spend the rest of the time asleep, often 16 hours a day, and began having suicidal thoughts”. Once again, I am surprised that there is no reference to OCD in the GP notes or that he was having suicidal thoughts. Again, I find it unlikely that the Claimant experienced such adverse effects given that he said nothing to his GP about them.

[44]For the above reasons, I do not find the Claimant's impact statement or his evidence to be a reliable source of evidence to demonstrate that he was suffering a substantial and adverse effect on his ability to carry out normal day to day activities. Looking then to the GP notes, the only reference to any effect on day to day activities during the material time is the Claimant's difficulty sleeping. That was first mentioned in June 2018.

[45]Pulling all of this together and stepping back in order to answer the questions at paragraph 11 above, my conclusions are as follows: Does the Claimant have a physical or mental impairment?

[46]I am not persuaded that the Claimant was suffering from a mental impairment during the material time. I recognise that the line can often be blurred between someone reacting to a set of circumstances at work, with the effect that can have on an employee, and someone suffering from depression. However, I rely on the diagnosis provided by the GP, supported by the OH report in July 2018, and find that there was a reason why they decided to diagnose the Claimant with work related stress rather than depression. I find that the reason for this was the Claimant's preoccupation with work issues being the main reason for visiting the doctor and the main reason for why he was feeling as he was. He was not presenting with other symptoms of depression. Support for that analysis can be seen in the GP notes from the visit on 21 February 2019 when in response to the comment “background of bullying and harassment at work; according to him he states he had discussed with trade union at time which were not helpful” the GP notes the Claimant's comment: “main stress and low mood came from this” Does that impairment have a substantial adverse effect on the Claimant's ability to carry out normal day-to-day activities? Is that effect long-term?

[47]As I have concluded that the Claimant was not suffering from an impairment, this question is somewhat academic. However, for completeness, I am persuaded that the inability to sleep falls within the definition of a substantial effect on one’s ability to carry out a normal day to day activity. However, I find that the difficulty the Claimant found sleeping was a reaction to the work-related stress suffered by him. As the Claimant presented with these symptoms in June 2018, the adverse effect had not lasted 12 months by 21 February 2019 and there was no evidence available during the material time to suggest, or from which I was prepared to infer, that it was likely to last 12 months or for the rest of the Claimant's life.

[48]For the above reasons, it is my decision that the Claimant was not a disabled person within the meaning of the EQA. As such, the Claimant is not permitted to bring his disability discrimination claims, which are dismissed.

issues.

[1]It is the judgment of the Tribunal that the Claim relating to unfair dismissal is well-founded and succeeds.

Issues to be determined

[2]What was the principal reason for the Claimant’s dismissal and whether it was a potentially fair reason under sections 98(1) and (2) of the Employment Rights Act 1996?

[3]The Respondent asserted that it was a reason relating to the Claimant’s conduct in taking undelivered items of mail home from his shift, not informing management and then starting to deliver those items on a nonworking day.

[4]The Claimant stated that he had been dismissed unfairly as the Respondent did not take his mental health issues into account.

[5]If so, was the dismissal fair or unfair within section 98(4), and, in particular, did the Respondent in all respects act within the band of reasonable responses? The Claimant stated that the dismissal was unfair as others had breached the Data Protection Act provisions and had not been dismissed. Further, he argued that the sanction was not reasonable.

[6]In respect of the Claimant’s claim of unfair dismissal, the focus under section 98(4) is on the reasonableness of the Respondent’s decisions.

The Hearing

[7]The hearing took place over the Common Video Platform and started on 4 January 2022. A face to face hearing was not possible due to the Covid pandemic and the hearing took place in accordance with the Presidential Guidance relating to remote hearings.

[8]The Claimant had technical issues during the morning session, and therefore the evidence only started at 2pm.

[9]Respondent called evidence from Miss Jarvis, the dismissing officer that afternoon. Her evidence continued the following day, 5 January, and then Mrs Walsh, the appeal officer, gave evidence.

[10]As the hearing had been listed for two days, the hearing had to be postponed part-heard and the Claimant gave evidence on his own behalf on 11th February 2022.

[11]I considered the documents from a Bundle of Documents which the parties had introduced into evidence, amounting to 445 pages. The Claimant indicated that he had further documents that he wanted to add to the bundle. Those documents were emailed to the Respondent and Tribunal for the first two days, and subsequently added to the original bundle.

[12]The second bundle amounted to 485 pages. This was increased after the Claimant’s evidence, as he referred to a document relating to different types of delays to mail. 4 pages of the National Conduct Agreement between Royal Mail Group, CWU and Unite were provided on the afternoon of 11 February 2022.

[13]I was also provided with a cast list, chronology, a list of issues and written submissions on behalf of the Respondent, in addition to the witness statements. I was later provided with the Claimant’s cast list and chronology.

[14]By a claim form presented to the Tribunal on 25 March 2019, the Claimant brought claims of disability discrimination and unfair dismissal.

[15]The claim in respect of disability discrimination was dismissed following a preliminary hearing on 19 March 2020. Findings of facts

[16]Based on the evidence heard and the submissions made, I found the following facts.

[17]The Claimant was employed by the Respondent between 23 April 2012 and 21 February 2019. He was employed as an Operational Postal Grade (OPG) at its Catford Processing Unit.

[18]He was transferred from North London to the Catford Deliver Office on 14 November 2018, after a period of illness.

[19]In respect of that illness, the Claimant was signed off with stress from 25 June 2018. He had an Occupational Health assessment during his period of sick leave, on 18 July 2018. He was signed off until 25 November 2018.

[20]Despite that certificate, the Claimant returned to work full time on 14 November 2018, undertaking his usual duties.

[21]He had a return to work meeting on 7 December 2018. In that return to work meeting the Claimant advised the Respondent that he was suffering from panic attacks. The document noted that the reason for absence had been stress. The Claimant stated that it had been hard to adapt to the new area with different walks and different ways of working. He stated that he had been prescribed medication but had stopped that 3 weeks before. In the question relating to any issues that his illness or condition might affect his ability to attend regularly, the noted response was that the Claimant was „still having panic attacks“.

[22]In answer to the question about any other issues or concerns in or outside work that were affecting his health or attendance, it is again noted “still having panic attacks and concerned re workload due to new area, delivery and Christmas”. He was noted to have asked management to be understanding as he was “still not 100%”.

[23]On the same date there was a further return to work discussion relating to an absence ending on 17 November 2018 (which was a one day absence). That document had initially been completed with the reaosn for absence as upset stomach, but this was crossed out and replaced with panic attack.

[24]The Respondent’s policy in respect of back to work meetings is that they should take place within 3 hours of the employee starting their shift. Ms Jarvis in evidence said that she usually tried to hold such meetings within the first 24 hours of someone returning to work following sickness, however it was not always possible. She said that in the Claimant’s case they had planned 2 days of training, but that he had not attended on the first day, and then was late on the second day (which was 14 November 2018).

[25]Ms Jarvis said that she had not considered a phased return, or any other reasonable adjustments, as she had been told that the Claimant’s stress had been due to the travel time, which had been resolved by the transfer and the Claimant’s subsequent move.

[26]On the same date, 7 December 2018, the Claimant sent a message to a colleague from his North London office, Mark Dolan.

[27]The following day, Saturday 8 December 2018, the Claimant was due to work a full shift. It is agreed between the parties that he did not complete that shift and indeed that he took the mail that he had been unable to deliver home with him. The undelivered mail was in excess of 131 items.

[28]The evidence as to what the Claimant did that afternoon was disputed. Initially the Claimant stated that he returned home when he felt unwell and would not have been able to make it back to the depot before it closed at 4.30pm. Subsequently the Claimant stated that he had attended the depot but it was closed and therefore he had to take the mail home with him.

[29]The Claimant did not report his illness on that date, nor that he had taken undelivered mail to his home, to management. He was able to do so, and was required to do so by the policies in place.

[30]The Claimant was not required to work on Sunday 9 December, and had a rest day on Monday 10 December 2018. On Monday 10 December, despite not being on the rota to work, the Claimant decided to deliver the mail from his previous shift. Whilst he was on his way to the depot, Ms Sharon Green, his manager, telephoned him advising him not to come into work. She did ask where his PDA device was, as he had not returned it at the end of his previous shift.

[31]The Claimant attended the depot and left the device there.

[32]He then continued to deliver the mail he had taken home. The postal delivery worker who was working that route, Mr Ademuyiwa Oyefusi, saw the Claimant and notified the office. Ms Green and Ms Charlotte Jarvis then drove around the delivery round and saw the Claimant delivering mail. He was asked what he was doing, and told Ms Green that he was delivering mail that he could not deliver on 8 December. At that time there were 131 items of mail still to be delivered.

[33]The Claimant was asked to return to the Catford Delivery office with Ms Green, who then suspended him pending an investgation. He was suspended for “alleged wilful delay, and breaching security standards“ (pages 184-5 of the Bundle).

[34]At 12.36pm on 10 December 2018 the Claimant sent a text message to Mr Lee, union representative. He told Mr Lee that he had been trying to get hold of him since he had transferred to the Catford Office 3 weeks ago. He said that he had been having lots of issues with no one to help him. He said he had been off work for stress and depression and had suffered bullying, harassment and threats from management. He said that he had to work overtime for free.

[35]He ended the message by saying “to the point I end up doing something stupid last Saturday, by bringing some of the work home and delivering it today, when I was told it was my day off... just been told I’ve been suspended pending an investigation”.

[36]Mr Lee responded at 19.55 with the contact details for his office representative, Richard Taylor.

[37]The first fact finding interview took place at 11am on 13 December 2018. Prior to the meeting, the Claimant was sent a letter stating that he had could be accompanied by a trade union representative or work place colleague. The Claimant reponded on 10 December stating that he would attend and would be accompanied by Richard Taylor (pages 181 to 182 of the Bundle).

[38]In that interview the Claimant stated that he had started work on the relevant Saturday at 7.59am. He said that he had had to prepare his walk all himself which took until midday. He said that at around 3.30/4pm it started to get dark and he thought he might make a lot of mistakes as he was not able to see in the dark, so he decided to take the work home with him to finish Sunday and the rest on Monday.

[39]He added that he had been put on unfamiliar delivery routes and he did not know the area. He had no support in the office and felt isolated and depressed. He said that he was afraid of being bullied or harassed if he brought work back which is why he took it home to finish on his rest days (notes in Bundle pages 186 to 187).

[40]The second fact finding intervew took place on 14 January 2019. Ms Green conducted the meeting and Mr Richard Cox was present as the Claimant’s represtative. During that meeting the Claimant confirmed that he had taken the post home with him as he had no answer when he telephoned the office and thought that it would be closed. He stated that he had been having constant issues with his PDA and no one was available to help him.

[41]At the end of the meeting Ms Green asked Mr Cox if he wanted to add anything. He responded that he did not think it was done vindictively or intending to delay the mail and that the fact that the Claimant had wanted to deliver the mail even when he was off proved that.

[42]After the meeting, Ms Green wrote to the Claimant stating that the case was being referred to Ms Jarvis as she considered the potential penalty was outside her level of authority (leter at page 212 of the Bundle).

[43]A formal conduct meeting was held on 31 January 2019. The meeting had initially been scheduled for 29 January 2019 but was postponed as the Claimant was unwell. In the invitation letter sent by Ms Charlotte Jarvis, the Claimant was advised that the meeting was to consider four conduct notifications, namely:• Mail being taken home

• Mail delivery not being completed on given day

• Not reporting to a manager that mail has failed

• Delivering mail on rest day without manager knoweldge (letter pages 225 to 226 Bundle).

[44]On 29 January 2019 the Claimant notified the Respondent that he was unwell. He said that he was back on medication for anxiety which caused him “horrendous headache and body ache” and that he had worken up feeling really poorly. Ms Jarvis sent him a message stating “would a painkiller not help? If you took a pain killer then we can move the meeting back to 12.00 today to help you”. However, the Claimant stated that he could not mix his medication and the meeting was put back to 31 January 2019.

[45]After the meeting was rescheduled, Ms Jarvis sent the Claimant a letter stating that he was being investigated for gross miscoduct and if it was upheld that he could be dismissed without notice. In the original letter for the meeting on 29 January 2019, the level of allegation was misconduct, not gross misconduct.

[46]In cross examination Ms Jarvis denied upgrading the severity of the charge as a result of his illness, stating that it was a paperwork error as the letters should have been the same.

[47]The meeting was held by Ms Charlotte Jarvis. The Claimant’s previous union representenative had left, and the Claimant did not take anyone to the meeting. Ms Jarvis asked if he wanted a colleague, and he said he did. Mr Hogg, a colleuge working nearby, was called into the meeting by Ms Jarvis to assist. The notes of the meeting are at pages 228 to 232 of the Bundle.

[48]The Claimant was asked numerous questions about the various policies and procedures within the Bundle. Whilst the Claimant denied seeing certain documents prior to these proceedings, he accepted that the contents applied to him and that the principles relating to prompt delivery of mail and safe storage of mail were known to him.

[49]Ms Jarvis stated that she did not ask the Claimant for his call log as she did not disbelieve his account that he had called the office 7 times. She had asked to see Ms Green’s call log when she interviewed her. Ms Jarvis said that there was a secure box where employees could leave mail and keys if they were late and the office had closed. She said she did not know if the Claimant had known about the box, but she had not shown him.

[50]She denied being against the Claimant and preferring her long-term colleague’s account. She said that there was no bullying in the Catford Unit, and that the Claimant was wrong when he said he thought he would be bullied or harassed if he told management about his failure to deliver mail. She also said that if he had been concerned about bullying, that there was a separate process and he would have had to submit a form, which he had not done.

[51]When the notes of the meeting were sent to the Claimant, he rsponded with numerous comments and additional information. Within that document he stated that he had not told anyone about the failed deliveries as he was afraid of repercussions, namely bullying and harassment, as that had happened in the past. He also stated that he struggled with anxiety and depression. Within the same document he repeated that he had been signed off work for 6 months with stress, depression and anxiety, and that being forced to work whilst he was still signed off was really disappointing (at page 236 of the Bundle).

[52]On 8 February 2019 the Respondent wrote to the Claimant arranging for a further meeting to deal with additional evidence (pages 250 to 251). The further evidence was provided on the same date. The evidence related to an interview Ms Jarvis had had with Ms Green, a telephone interview she had had with Mr Manoj Patel (the Claimant’s previous line manager) and an interview with O Ademuyima (who was the colleague who had gone out on the round with the Claimant when he first joined Catford).

[53]During her interview with Ms Green, Ms Jarvis asked how Ms Green had known that the Claimant was delivering mail on his rest day. She answered saying that she had been told that he was out delivering so she had driven out with Ms Jarvis and that “we” had come across him. Ms Jarvis asked Ms Green what the Claimant was doing when she came across him, and again Ms Green answered “we saw his light weight trolley on its own outside the leisure centre so we stopped and I got out of the car and went over”.

[54]This exchange highlights the issue when a witness becomes a decision maker, and is then interviewing the investigator who was also a witness. In her evidence Ms Jarvis said that she was not classed as a witness in the business in terms of work, that she had just dropped off her colleague. She commented that she would understand the issue if it was a murder investigation.

[55]The Claimant provided his comments on the further evidence the following day. He did refer to the issue that Ms Green had conducted the fact-finding interviews and investigation and was now a witness.

[56]The Claimant attended the second formal conduct meeting on 13 February 2019. The notes are within the bundle at pages 262 to 265. There were no questions about the allegations themselves, simply about the further evidence.

[57]On 18 February 2019 the Claimant was notified of his appointment with Occupational Health.

[58]On 19 February, the Respondent invited the Claimant to a decision meeting, which took place on 21 February 2019.

[59]The Claimant was dismissed without notice on 21 February 2019. The decision outcome is at pages 280 to 285 of the Bundle. The decision relates to three charges namely intentional delay of mail, breach of mail integrity and loss of mail items. Miss Jarvis informed the Claimant that the decision was made that he would be dismissal without notice.

[60]Miss Jarvis attached the report in which she explained her findings. In respect of intentional delay of mail she said that she had upheld that point. She commented that throughout the investigation the Claimant had changed his statement several times. She also stated that she found that the Claimant had shown little acceptance of the impact it had had on the business and that the mitigation he had offered about being concerned he would be bullied was unsubstantiated. She stated that when considering the penalty for the case a suspended dismissal might have been considered if the only element of the case was this factor.

[61]Miss Jarvis then moved on to consider the failure to safeguard mail. Again, she decided to uphold that point and stated that the Claimant had demonstrated a clear disregard for mail integrity. She had considered the Claimant’s mitigation which was that he was not trained at the branch and that he had not prepped mail in his previous office. She found that that was not in fact correct and that in light of the fact that the Claimant had attended training on the importance of mail integrity she did not feel a suspended dismissal was appropriate. She gave the reason for that as the Claimant’s disregard for the seriousness of the issues and the lack of confidence that the Claimant would not repeat it again.

[62]Miss Jarvis then moved onto loss of items and stated that during the investigation 11 items had been located as missing. Two items were subsequently located. The other items remained missing and Miss Jarvis stated that miss the Claimant was unable to explain where those remaining items were.

[63]Miss Jarvis stated that given the combination of the notifications, the employee’s lack of appreciation and her concerns of a repeated incident, she felt that the only appropriate option was summary dismissal without notice.

[64]The Claimant advised the Respondent that he wanted to appeal. He stated that he thought it was unfair dismissal and that he had evidenced that his own postman, that is the postman that delivered to his home address, had delayed or lost mail.

[65]Miss Jarvis in evidence was asked about the fact that she had dismissed the Claimant for a charge he had not faced, namely intentional conduct in delaying mail, which had not been stated in her first letter. She stated that she did not agree that intentional conduct was more serious, that mail being taken home is a breach of contract, and mail not being completed on a given day is intentional. She said that those were terms used every day working for Royal Mail and they meant the same thing.

[66]Ms Jarvis denied dismissing the Claimant for lost mail items, until she was referred to the relevant documents. She commented that she had “a trusted employee who worked for Royal Mail for over 20 years” in Ms Green, and that she had no reason not to believe in her. When asked if she accepted that there was no evidence provided to the Claimant on the lost mail issue, she said that she accepted that she did not look into it as she trusted the investigation manager.

[67]The Occupational Health report was provided on 25 February 2019.The author of the report, Karen Shields, stated that following her assessment of the Claimant’s mental state she confirmed that the Claimant was suffering from severe depression and severe anxiety. She noted that currently the Claimant’s short, medium and long term prognosis was poor but that he was seeing his General practitioner the same day to discuss further treatment.

[68]Ms Shields was asked questions that had been prepared by management, Ms Jarvis. She was asked what steps could be taken that would guarantee that the incident would not happen again. The response was that as the Claimant had been dismissed from his role as postman it was not appropriate to respond to that question.

[69]She was also asked whether the Claimant’s medical condition, namely stress and anxiety, “had contributed to his behaviour ie not completing his delivery round, taking mail home and returning on a rest day to complete it”. Ms Shields replied stating that in her professional opinion she would advise that his condition did contribute to him not being able to deliver his post round that day. She added that “symptoms associated to his diagnosis most likely would have caused the Claimant not to function in a safe manner”.

[70]When Ms Jarvis was asked why she had ordered the OH report but not waited for the report to make her decision, she stated that although she had “started the ball rolling” to get the OH report, once she sat down and looked through the documents she had, she decided that she had all the information that she needed. She stated that she felt that she “had enough to go on” without waiting for the medical report.

[71]Ms Jarvis said that even though one of the factors for her to consider was the Claimant’s reactions and actions, she did not think it was critical to wait for the report. She said that as far as she was concerned, the Claimant had understood the implications of his actions and still chose to do what he did, and that she was “not entirely certain that he would not do it again”.

[72]When asked if it did not make her feel uncomfortable that she reached a decision before she receive the OH report, Ms Jarvis stated “that is why we have the appeals process”.

[73]Ms Jarvis was asked about whether she knew that the Claimant had suffered a panic attack during his shift. She said that she did not. She had asked him to talk her through the day and he had not stated that he had had a panic attack. When asked to refer to her notes as to where she asked that question, she conceded that she had not in fact asked him, but that she had not done so as Ms Green had asked the Claimant that question in her fact-finding interview. She added that she would not have asked the question, as it had been asked by “a trusted line manager”.

[74]Ms Jarvis was asked questions by the Tribunal in respect of the Claimant’s earlier OH report which referred to work related stress due to bullying and harassment at work. Ms Jarvis said she was not aware of that. She was also referred to the back to work meeting notes, which cited panic attacks on the first page. Ms Jarvis simply commented that the note did not say if the attacks were at work and that she had not been aware of that. She was not able to explain why the return to work meeting had not been conducted until 7 December 2019, but stated that it could have been due to leave or sickness of managers.

[75]It is clear to the Tribunal from Ms Jarvis’ evidence that she was not investigating the matter fairly and independently. She had a clear and obvious bias towards her colleague and friend Ms Green.

[76]The Claimant was written to on 1 and 7 March 2019 in respect of dates for his appeal hearing. On 13 March 2019 the Claimant requested that the appeal be heard in his absence and provided lengthy written submissions and evidence (pages 325 to 350 of the Bundle).

[77]Mrs Anna Walsh dealt with the appeal. She wrote to the Claimant on 1 March 2019 arranging a meeting at Bromley Delivery Office on 8 March 2019. She did not receive a response so rearranged the interview for a later date in March. On 13 March 2019 the Claimant stated that he had been advised that he was not fit to attend the meeting scheduled for the following day, 14 March, and that the appeal should be held in his absence. At that time, he provided lengthy submissions relating to his appeal for her to consider.

[78]On 11 April 2019 the Respondent provided the Claimant with all of the evidence that had been collated for his appeal hearing, and asked for his comments. He provided comments the following day (documents at pages 353 to 385 of the Bundle).

[79]On 17 April 2019 the Respondent provided the appeal outcome and report. She stated in her letter that she had decided that the Claimant had been treated fairly and reasonably and therefore she believed that the original decision of summary dismissal was appropriate in the case. She provided her report in which she commented on the Claimant’s submissions.

[80]Mrs Walsh stated within her report that she accepted that the Claimant was unable to cope with his delivery and that his lack of ability had a medical basis. However, she also noted that she understood why he feared that he would lose his job, as he had prompted consideration of the dismissal under the attendance policy before he transferred to Catford. She did not find that he feared for his job as a result of bullying.

[81]Mrs Walsh was asked if it had bothered her that the letter relating to misconduct had different charges, and that the addition of the issue of dismissal was “heavier”. She stated that it did bother her, but it was an appeal so it was a rehearing, which she felt should be dealt with by using the original charges as that was “more fair”.

[82]She stated that she did think that the medical evidence was relevant when considering intentional delay of mail, and that she had the OH report and had asked a further question in respect of that issue. She said that it had troubled her that Ms Jarvis had not waited for the report. Mrs Walsh had not put that in her report as it was a rehearing and she was looking at the case afresh, as if she were the dismissal officer.

[83]Mrs Walsh stated that she was not saying that the first hearing was fair, but as a rehearing she did not consider that Ms Jarvis had done anything that she could not rectify at the appeal. She said that the process followed had been fair, that the fact-finding had been in accordance with procedure, that there had been a disciplinary hearing where the Claimant had a representative, notes were taken and he had been sent them. She cited those parts as fair. She did accept that the whole process needed to be fair.

[84]Mrs Walsh was asked to compare the two initial letters sent to the Claimant (pages 214 and 225 of the Bundle) where the allegations were upgraded from conduct to gross misconduct. She accepted that the only event that had occurred between those dates was that the Claimant had been ill for the first meeting. However, she repeated Ms Jarvis’ evidence that she said it had been an error. She said that she believed the first letter was erroneous and did not accept the Claimant’s submission that the charge was upgraded because he had been ill.

[85]Mrs Walsh confirmed that the Claimant had been dismissed for allegations including loss of mail, however she had not considered that allegation as he had not been charged with that.

[86]In respect of the OH report Mrs Walsh agreed that the opinion was that his mental health did contribute to him not being able to complete his round that day. She therefore agreed that the Claimant’s act was not intentional as there was a genuine medical condition as to why it had happened.

[87]Mrs Walsh said that she had based her decision on his behaviour on the Monday when he tried to hide what had been done, did not tell his manager and then continued delivering mail when he was not working. She accepted that the rationale in respect of not informing management was not in her report, but it was a reason. She said that she would still have been likely to dismiss him if he had just delayed the mail on the Saturday, as the OH report said there was no guarantee that it would not happen again.

[88]When pushed by counsel in cross examination, Mrs Walsh said that she accepted that the delayed mail was not his fault, but the fact that he did not go into the office and explain was his fault.

[89]Mrs Walsh had asked OH an additional question about whether it could happen again. By the time that question was answered the Claimant had already been dismissed, and therefore did not have the opportunity to make any comments or representations on that issue. The answer to the question was that “a recurrence of the behaviour would always be unpredictable”.

[90]The Claimant gave evidence on 11 February 2022.

[91]He accepted that the relevant policies (detailed below) applied to him and that he was familiar with issues relating to the security of mail. He accepted that the required standards are that all mail due for service on any given day must be delivered. He agreed that if mail was deliberately withheld that it could be an issue of integrity and honesty.

[92]The Claimant said that he had reported bullying and harassment, but that the Respondent had not taken any notice, so he did no more about it. He was then signed off sick. He said he had reported it to his managers and to his union representative.

[93]The Claimant said that 14 November 2019 was not his start date, he was simply told to attend an informal meeting with Ms Green. During that meeting he said he told Ms Green that he was still signed off sick and gave her his doctor’s certificate.

[94]The Claimant accepted that he had had a week of leave in late November, returning on 26 November 2019. He said that the back to work meeting was held after a lengthy delay, as he had been working on his own for 2 weeks, still feeling ill and having panic attacks.

[95]The Claimant said that he had not contacted his union representative on 8 December 2019, and had not only done so after he had been “caught” delivering mail. He said that he had contacted the union after he had been suspended and that prior to that he was suffering severe stress, panic attacks and his mind was foggy due to the medication he was taking. He said that he was severely depressed on the Sunday as he was “kicking himself” that he had “made a mistake”. He said he was just looking forward to starting his work early on the Monday morning to deliver the mail.

[96]He had kept the mail securely in his living room, in the small trolley he used to deliver. He said that he was going to speak to his manager on Monday but then he was given the day off and he panicked and thought if he took the post home it could be a criminal offence, but if he went into the depot he would be intimidated and bullied. He said that customers were waiting and the least he could do was deliver the post on the Monday.

[97]The Claimant said his anxiety and depression had affected his decisions. He therefore thought that the best thing to do on the Monday was to “deliver the mail quietly and not tell anyone”, and not to make someone else do a third of his walk.

[98]The Claimant stated that he had not mentioned his anxiety to Ms Green as she was being aggressive accusing him of stealing the PDA (relating to text messages at page 173 of the Bundle).

[99]He said that in the first fact finding meeting he had mentioned his panic attack but it was not put in the notes. In the second meeting he was not asked questions about the date. He repeated that he was aware of how important it was to keep mail safe and that the mail had been safe in his home. He said that he had been told that there were circumstances in which you could take mail home if there was no other option.

[100]It was put to the Claimant that the first time he had mentioned panic attacks was in the OH report. He denied this and said he raised them in his back to work meeting. He also said that he had told Ms Green and Ms Jarvis but they had not taken notes.

[101]The Claimant said that he completed his work on 8 December 2018 to the “maximum of [his] abilities”. Relevant policy documents

[102]In addition to the terms and conditions of his employment, the parties produced declarations, guides and policies. The relevant parts are summarised below.

[103]The Claimant also signed a Personal Declaration to Royal Mail Group on 26 April 2912 (page 60 of the Bundle). Within that document, under the sub heading Safety of Postal Packets, the following is set out: “It is … a criminal offence to open or delay (contrary to your duty) a letter, parcel, mailbag or any other postal packet in course of transmission by post”.

[104]The Respondent also provides a Guide for employees entitled “Security of Customers’ Mail and Royal Mail Group Property” (pages 95 to 97 of the Bundle), which states that employees must protect the security of the mail, and that whether mail is stolen or not, a conduct investigation can still take place in respect of an employee whose actions cause the mail for which they are responsible to be insecure. This includes mail being left at an unauthorised drop off point.

[105]The Respondent has published a National Joint Statement with CWU, the communications union entitled “Avoiding Delay (Commit to deliver) and Reporting Standards”.

[106]That document confirms that delay to mail is a serious matter and could potentially be unlawful. Further, any time that mail is delayed, for whatever reason, Royal Mail employees should attempt to correct the problem efficiently and effectively as soon as possible. In particular, under general rules, it states the following: “Employees must be made aware that mail must never be taken home at the end of a delivery. Correct endorsement procedures and correct use of the pouching wallet, where appropriate, will avoid this Under normal circumstances, if procedures have been followed no conduct action will be taken against individuals if it is not possible to deliver all mail within their scheduled time … Measures must be put in place to advise employees on the course of action to be taken when difficulties arise when managers are unavailable” (page 102 of the Bundle).

[107]The Respondent’s Conduct Policy provides, inter alia, that:• Conduct and behaviour should be managed by providing constructive feedback… At every stage in the procedure the employee will be advised of the full nature of the allegation and the action that might be taken against them and will be given the opportunity to state their case before any decision is made

• No conduct action will be taken against an employee until the case has been fully investigated

• No employee will be dismissed for a first breach of conduct, except in the case of gross misconduct, when the penalty will normally be dismissed without notice or payment in lieu of notice

• Notification of action in line with the Conduct Policy will only be made when sufficient facts of the case have been determined.

[108]The Policy also stated that the authority to give warnings and serious warnings lies with the immediate manager. Major penalties will normally be given by an employee’s second line manager of at least Royal Mail Executive Manager Level 2 grade.

[109]The Policy outlines types of behaviour that are so serious and so unacceptable that if proved they would amount to gross misconduct and warrant dismissal without notice or pay in lieu of notice. One example cited is the intentional delay of mail. Another example is deliberate disregard of health, safety and security procedures or instructions.

[110]In respect of appeals, the Policy states that for appeals relating to dismissal the appeal will normally be held by an appeals manager. Law relating to unfair dismissal

[111]Section 94 of the Employment Rights Act 1996 confers on employees the right not to be unfairly dismissed. Enforcement of the right is by way of complaint to the Tribunal under section 111. The employee must show that he was dismissed by the Respondent under section 95, but in this case the responded admits that it dismissed the Claimant (within section 95(1)(a) of the 1996 Act) on 14th January 2019.

[112]Section 98 of the 1996 Act deals with the fairness of dismissals.

[113]Section 98(4) provides: “… the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) 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 shall be determined in accordance with equity and the substantial merits of the case”.

[114]In respect of misconduct dismissals, there is well-established guidance for Tribunals on fairness within section 98(4) in the decisions in British Home Stores v Burchill

1978 IRLR 379

and Post Office v Foley

2000 IRLR 827

. The Tribunal must decide whether the employer had a genuine belief in the employee’s guilt.

[115]The Tribunal must then decide whether the employer held such genuine belief on reasonable grounds and after carrying out a reasonable investigation.

[116]In all aspects of the case, including the investigation, the grounds for belief, the penalty imposed, and the procedure followed, in deciding whether the employer acted reasonably or unreasonably within section 98(4), the Tribunal must decide whether the employer acted within the band of reasonable responses open to an employer in the circumstances.

Conclusions

[117]The first issue is what was the principal reason for dismissal. I find that the reason is misconduct based on the Claimant taking undelivered mail home with him, not advising a manager of the undelivered mail and attempting to deliver mail on a non-working day.

[118]These actions were in breach of the Respondent’s policies.

[119]The next question is the three stages in the BHS v Burchell case. First, did the Respondent genuinely believe that the Claimant committed the misconduct alleged. I find that there was not a genuine belief. This stage needs to be considered in conjunction with the second stage.

[120]Second, was that belief held on reasonable grounds? The burden of proof in respect of this overall question of fairness is neutral. I must consider the reasonableness of the Respondent’s conduct, not the injustice to the Claimant.

[121]I find that the belief was not held on reasonable grounds. The dismissing officer initially formed the view, based on the account given by the Claimant, that an occupational health report would be necessary for her to consider the conduct. However, having ordered the report, Mrs Jarvis did not wait for it; she dismissed the Claimant.

[122]She also showed bias towards colleagues she had worked with for years, as set out above.

[123]Third, was there a fair and reasonable investigation? I find that there was not. The dismissing officer was a witness to part of the acts complained of. Ms Jarvis had in fact witnessed the Claimant delivering mail on 10 December 2018. It was submitted on behalf of the Respondent that the use of a witness as the investigation officer did not prejudice the investigation so as to render it wholly unfair. It was submitted that Ms Jarvis had limited involvement in the events of 10 December 2018 and that she remained independent of the investigation. I do not accept the Respondent’s submissions on this point. The initial process which lead to the Claimant being dismissed was not fair.

[124]There was an initial fact-finding meeting with the Claimant in which he gave his account. There was then a conduct meeting, at which the Claimant had union representation, was given the appropriate notice and was given the opportunity to make representations. However, those representations were not properly considered. To have done so would have required the dismissing officer to review the Claimant’s mental health through an OH report. Ms Jarvis had ordered the report be obtained, but had not waited a matter of days for the report to be provided. From her evidence it appears that she was not concerned by the criticisms made of her, stating that that was why there were appeal hearings.

[125]After the decision had been made to summarily dismiss the Claimant, he was given the opportunity to appeal the decision, which he did.

[126]The Claimant chose to make written submissions. Those were made in detail. They were considered in detail, and his appeal was not upheld.

[127]As regards procedure generally, I find that the procedure followed in respect of the investigation and dismissal was not reasonable as set out above. Ms Walsh in her evidence stated that she felt that the appeal had been able to correct any issues from the original decision. However, one of the key elements was the question of the potential reoccurrence of the Claimant’s condition. He was not given any opportunity to comment upon the opinion given in response to Mrs Walsh’s further question.

[128]The Claimant had raised the fact that he was having panic attacks, and was concerned about working new routes and using unfamiliar practices on more than one occasion. I accept the evidence he gave on the balance of probabilities that he raised it with management on occasions prior to the two return to work meetings. Within the meetings themselves, panic attacks were clearly discussed and the condition was ongoing. The Claimant was not referred to Occupational Health in his new role until after he was suspended, and then the decision maker did not wait for the report before dismissing the Claimant.

[129]Finally, the question is whether the dismissal was a fair sanction. Could a reasonable employer have decided to dismiss for the Claimant for acting in the way the Claimant did in this case? I find that they could not.

[130]The circumstances leading to the Claimant failing to deliver all the mail in his shift were as a result of medical conditions which the Respondent had been made aware of. The OH report supported his position.

[131]I make it clear, that it is immaterial how the Tribunal would have handled the events or what decision it would have made. I do not, nor am I entitled to, substitute my own view for that of the reasonable employer.

[132]It is accepted that summary dismissal is the most serious outcome for an employee. However, I find that it is outside the range of reasonable responses in this case.

[133]I find, therefore that the Claimant was unfairly dismissed by the Respondent within section 98 of the Employment Rights Act 1996.

[134]Remedy will be considered on a date to be fixed by the Tribunal.