Employment Judge DinRepresenting himself for claimantDate 23 October 2023
JUDGMENT
The judgment of the Tribunal is that the complaint of unfair dismissal fails and is dismissed.
REASONS
[1]The Claimant is Mr Nnamdi Maduka (Claimant).[2]The Respondent is Royal Mail Group Ltd (Respondent). Claims and issues[3]The Claimant claims that he was unfairly dismissed under the Employment Rights Act 1996 (ERA 1996). The Respondent contests the claim. If his claim is successful, the Claimant seeks a remedy.[4]The matter relates to the discovery on 23 August 2022 of a clear plastic bag containing “magic mushrooms”, an illegal drug. A green locker fob number 227 was found with the plastic bag. The green locker fob number 227 was the fob that went with the Claimant’s key for locker 227. Locker 227 was the Claimant’s locker.[5]The Respondent dismissed the Claimant in light of the discovery of the drugs.[6]The outstanding issues are as follows.a. Did the Respondent have a potentially fair reason for dismissing the Claimant? The Respondent states the reason for the Claimant’s dismissal was conduct in line with section 98(2)(b) of the Employment Rights Act 1996.b. If so, did the Respondent have a genuine and reasonable belief of the Claimant’s misconduct?c. If so, were there reasonable grounds upon which to justify that belief?d. If so, did the Respondent carry out such investigation as was reasonable in all the circumstances of the case?e. If so, did the decision to dismiss the Claimant fall within the range of reasonable responses open to a reasonable employer in the circumstances? The Respondent states that it had a genuine belief in the Claimant’s misconduct and there were reasonable grounds upon which to justify that belief.f. The Tribunal’s determination whether the dismissal was fair or unfair must be in accordance with equity and the substantial merits of the case.g. If the dismissal was unfair, did the Claimant contribute to his dismissal through his conduct?h. If the dismissal is found to be procedurally unfair, would the Claimant have been fairly dismissed in any event had a fair procedure been followed?[7]The Claimant produced an additional list of issues that are dealt with, where relevant, during the course of this judgment. Procedure, documents and evidence heard[8]The Claimant’s claim form (ET1) was received by the Employment Tribunals Service in Watford on 13 January 2023.[9]The Respondent responded using a response form (ET3) and Grounds of Resistance dated 6 March 2023.[10]A 147-page hearing bundle of documents was provided in advance of the hearing. The bundle includes a document entitled “Witness Statement” that consists of the notes of an interview of Peter Lunn dated 15 September 2022.[11]In addition to the materials in the bundle, the following was put before the Tribunal:a. A witness statement from the Claimant (dated 28 August 2023).b. A letter from Sonya Michael stated to be a statement (dated 25 August 2023).c. A witness statement from the Andrew Smith (undated).d. A witness statement from Susan Knight-Smith (undated).[12]The Claimant’s witness statement is dated, contains a statement of truth and is unsigned. The Claimant attended the hearing. Ms Michael’s letter is dated and says the statement is a true account and to the best of Ms Michael’s ability and is unsigned. Ms Michael did not attend the hearing.[13]The statements from Mr Smith and Ms Knight-Smith are undated, contain statements of truth and appear unsigned. Mr Smith and Ms Knight-Smith both attended the hearing. Ms Knight-Smith confirmed that her statement was produced in around July 2023.[14]At the hearing, the Tribunal heard from the Claimant on his own behalf and from Mr Smith and Ms Knight-Smith for the Respondent.[15]I accept all the statements referred to above and oral evidence (as appropriate) in evidence, giving appropriate weight to them in light of the above factors.[16]Towards the end of the hearing, the Claimant stated that he did have one witness, Ms Michael, but that she could not attend the hearing. Further, the Claimant stated that Mr Lunn was not available for this hearing. The Claimant asked if they could attend at a later date. I decided that, given the advanced stage of the hearing, the parties having sufficient notice of the hearing, and consistent with the overriding objective as set out in Rule 2 of the Employment Tribunals Rules of Procedure 2013, it was not in the interests of justice to adjourn to another day to hear from additional witnesses. This would cause unnecessary delay. In any event, I did not consider that the attendance of Ms Michael and / or Mr Lunn would shed much by way of further light on the central issues in the case. Facts[17]The relevant facts are as follows. Where I have had to resolve any conflict of evidence, I indicate how I have done so at the material point. The Claimant’s employment[18]The Claimant was employed by the Respondent from 6 October 2003. He was employed at an Operational Postal Grade at the Respondent’s Princess Royal Distribution Centre (PRDC).[19]The Claimant was dismissed by the Respondent on 6 January 2023. This was stated to be for the possession of illegal substances (drugs / narcotics) on the Respondent’s premises on 23 August 2022. Policies and procedures[20]The Respondent has various policies and procedures, including a Conduct Policy. As part of these policies and procedures, it is stated the possession of illegal drugs in the workplace is prohibited.[21]The Claimant has confirmed that he was aware of this prohibition and understands the seriousness of possessing drugs of the type that he is alleged to have had. The plastic bag[22]On 23 August 2022, a clear plastic bag (around three inches square) was found by Ms Wright-Legge, Late Shift Manager at the Respondent. Fob number 227 was found wrapped with the plastic bag. The green locker fob number 227 was normally attached to the Claimant’s key for the Claimant’s locker, number 227. The bag was believed to contain “magic” mushrooms (a hallucinogenic and illegal drug), something that was later confirmed by the police.[23]Ms Wright-Legge took the plastic bag to Mr Lunn’s office. Mr Lunn is a trade union representative. Mr Lunn says that Ms Wright-Legge “kicked” the plastic bag into his office. Ms Wright-Legge indicated to Mr Lunn that she was concerned that the bag may contain illegal substances.[24]The Claimant states that his name was called over the Tannoy at PRDC. Ms Wright-Legge called the Claimant into an office with Mr Lunn. Ms Wright-Legge asked the Claimant for his locker key. The Claimant said that when he searched his pocket he only found the key but his key fob was not attached to it.[25]Ms Wright-Legge then showed the Claimant the fob for his key with the plastic bag and asked the Claimant if the plastic bag belonged to the Claimant. The Claimant says that he told Ms Wright-Legge that it was not his.[26]The Claimant states that he explained his movements and said that he had taken an unofficial break, as he had carried out a task for a senior manager, Mr Nick Minden. He went to his locker to collect his mobile phone. He then went to the PRDC café. After going to the café, he went back to the locker room to leave his mobile phone in his locker. He said that he explained that the only time he could have become separated from the fob would have been when he was departing the locker room after his break. The Claimant says that he made it clear that he had no idea what was contained in the plastic bag and that it did not belong to him. He referred to the possibility that the bag had fallen out of the pocket of a bystander who had found the fob or that someone deliberately placed it there to implicate him.[27]The Claimant states that PRDC is a busy work environment with a number of people moving around. He describes it as a “great hive of activity 24/7”. He also comments that the site was very clean, describing it as “pristine”. He states that if a bag had been left, then someone, such as cleaners, would have found it. There were lots of people around, even if it was not breaktime.[28]Under cross-examination, Mr Smith stated that he understood there would have been no other people around, as there were no official breaks at that time. As such, he had no reason to believe that there was anyone else there. The Claimant stated however that there were 10-15 people in the PRDC café when he was there.[29]I find that there would have been other people around at that time. However, the person who found the plastic bag and brought it to the attention of others who could investigate the matter was Ms Wright-Legge. No one else was identified as having touched the plastic bag or being responsible for its contents.[30]The Claimant states that the questioning by Ms Wright-Legge, which he describes as an interrogation and lasting 7 to 10 minutes, was intense and Ms Wright-Legge would interject with the words “Just own up to it! Just own up to it!” between three to five times. The Claimant found the situation very stressful.[31]Ms Wright-Legge asked the Claimant if she could check his locker, to which the Claimant agreed. Ms Wright-Legge looked at the Claimant’s locker and found no drugs.[32]The Claimant says that once the three of them (the Claimant, Ms Wright-Legge and Mr Lunn) were back in the union office, Ms Wright-Legge was unwilling to accept the Claimant’s explanations.[33]According to the Claimant, at that point, Ms Wright-Legge gave him two options:a. The Claimant admit that the drugs are his, then the issue will go away and that would be the end of the matter;b. The Claimant does not admit that the drugs are his, then the police will be called, and they may have to speak to the Claimant regarding the alleged drugs and that Royal Mail will have to be notified.[34]According to subsequent investigations, Ms Wright-Legge has stated that she gave the Claimant a chance to admit the drugs were his and the Claimant said that he would admit it to make the matter go away. She has further stated as part of the investigation that she gave the Claimant one hour to let her know the truth, which was: “It’s his so I will chuck it away and we will deal with the problem” or “It’s not and I would have to investigate and contact the police who may or may not want to talk to him”.[35]Mr Lunn was asked in a later interview whether Ms Wright-Legge had said to the Claimant that if he admits the drugs were his, then the issue would go away and that would be the end of the matter, and if he did not admit that the drugs were his, then the police would be called and they may have to speak to him regarding the alleged drugs and Royal Mail would be notified. Mr Lunn said that Ms Wright-Legge did not say this. According to Mr Lunn, Ms Wright-Legge said that if the drugs were the Claimant’s then the Claimant should be honest with her and “we will deal with it”. Mr Lunn went onto say that the Claimant stated that the drugs were not his and someone was trying to frame him.[36]Mr Lunn said that the Claimant was given some thinking time. On his return, the Claimant continued to deny that the drugs were his. When it was put to Mr Lunn that the Claimant had said that he would admit that the drugs were his in order to stop the process, Mr Lunn said that the Claimant was thinking of admitting in order to stop the process. However, Mr Lunn said to the Claimant that he should not admit to something that did not belong to him and that the Claimant knew nothing about. Mr Lunn confirmed that the Claimant had maintained from the outset that the drugs were not his. Mr Lunn also stated that the key fob was wrapped around the outside of the bag and not inside.[37]The Claimant has stated that he agrees with Mr Lunn’s comments about what Ms Wright-Legge said to the Claimant.[38]In his witness statement, the Claimant said that he thought about the matter for an hour and returned with the intention of accepting Ms Wright-Legge’s offer (i.e., admitting that the drugs were his) but was uncomfortable about it. He realises now that this was an error of judgement. He says that he was not thinking straight. The Claimant says he told Ms Wright-Legge that he would admit that the packet was his only to stop the process. The Claimant states that Mr Lunn was not present for this meeting.[39]In his witness statement, the Claimant states that he said “the only reason I am willing to take responsibility of the situation is because of the offer you made that it would be the end of the matter however the drugs are not mine”. He goes on to say that at that point, Ms Wright-Legge said that this was not good enough and that she would get to the bottom of the matter.[40]I find that the Claimant did briefly admit to the matter in order for the issue to go away. I deal with the weight I place upon this in the conclusions section below.[41]Ms Wright-Legge has stated that, after these exchanges, she sent the Claimant home for a “cooling off period”, with the Claimant due back in on the following day for a further meeting. 24 August 2022[42]The Claimant states that on the following day, 24 August 2022, he returned to duty at his normal shift start time but was stopped and told that he was suspended on full pay until further notice. The Claimant’s response was to ask Ms Wright-Legge to look at CCTV footage that would confirm that the Claimant was on the operational floor in the moments leading up to the alleged time of the incident and afterwards up until the time that his name was announced on the Tannoy. The Claimant also states that he requested to be blood tested to prove that he did not have whatever had been found in his system. He says that he further stated that the Respondent would not find his fingerprints on the plastic bag, as it did not belong to him.[43]The Claimant says he was asked to hand over his ID badge and escorted off the premises.[44]The Respondent states that an informal “seeking an explanation” meeting was held between Mr Elroy Palmer, Work Area Manager at the Respondent, and the Claimant on 24 August 2022. The Claimant states that no such meeting took place. I have not heard from Mr Palmer.[45]There is a further dispute as to whether the Claimant had an informal meeting with Mr Nick Minden, a manager at the Respondent on 24 August 2022. Certain of the Respondent’s documents suggest that this meeting took place. Mr Smith, who acknowledges that he did not attend either the meeting with Mr Palmer or Mr Minden, states in his witness statement that the meeting with Mr Minden did take place. Further he says that, as this was part of the informal phase of the process, no notes were made.[46]The Claimant denies that the meeting with Mr Minden took place on 24 August 2022 – pointing to the fact that we was escorted off the PRDC premises immediately on arrival. I have not heard from Mr Minden.[47]I find that neither the meeting with Mr Palmer nor Mr Minden did take place, as I have not seen any evidence that they took place beyond limited documents produced by the Respondent at a later date. This is unlike the email produced by Ms Wright-Legge of her informal meeting with the Claimant on 23 August 2022. I understand Mr Smith’s point that, because they were part of the informal part of the process, no notes were taken. However, if there were meetings, even informal ones, I would have expected there to have been some contemporaneous records of their occurrence – even if those records did not contain full notes.[48]During cross-examination, Ms Knight-Smith stated that whether or not there had been a meeting with Mr Linden was not relevant to her findings.[49]It is agreed that on 24 August 2022 the Claimant was formally suspended from duty whilst investigations took place. The suspension was recorded in a letter from Mr Palmer to the Claimant on 25 August 2022 and refreshed periodically. Fact finding meeting on 30 August 2022[50]In a letter dated 24 August 2022, the Claimant was invited to a fact-finding meeting to take place on 30 August 2022. A fact finding meeting was held by Mr Palmer with the Claimant on 30 August 2022. The Claimant was accompanied by Phil Gurd, a CWU (the Claimant’s union) representative.[51]When asked why his key fob was found with the drugs, the Claimant said that he had gone to get something from his locker and it may have been around that time that the fob might have fallen off his key onto the floor in the locker room. The Claimant was also asked whether he thought someone had found his key fob and planted it with the drugs. The Claimant said that that was only explanation and he had never seen the plastic bag before.[52]On 14 September 2022, the Claimant was informed by Mr Palmer that a potential witness (unknown to the Claimant) was to be interviewed. The Claimant was subsequently informed by Mr Palmer that the matter was being escalated to Mr Smith as the potential penalty was outside Mr Palmer’s level of authority. Interview with Mr Lunn[53]On 15 September 2022, Mr Palmer interviewed Mr Lunn. A note of this meeting, headed “Witness statement” was produced to the Tribunal, albeit it is unclear who produced it.[54]The Claimant states in his witness statement that the first time he was made aware that Mr Lunn had made a witness statement was at the appeal stage. The Claimant further states that he only received and read the witness statement sometime after the appeal. Formal conduct meeting[55]On 5 October 2022, the Claimant was invited to attend a formal conduct interview to take place on 12 October 2022. The meeting participants were the Claimant, Andrew Smith (the investigating manager) and Mr Gurd from the CWU. A draft note of the meeting was prepared and sent to the Claimant for his comments. The Claimant came back with written annotations to the note, which Mr Smith accepted in a letter dated 14 November 2022. Delays to the process[56]On 21 November 2022, Mr Smith wrote to the Claimant telling him that the conduct process has taken longer than expected to ensure he had taken all information and deliberations on board prior to decision making.[57]A further letter from Mr Smith was sent to the Claimant on 23 December 2022 stating that the conduct process has taken longer than expected due to “operational issues caused by industrial action during our peak operation”. Decision and dismissal Meeting[58]On 28 December 2022, Mr Smith wrote to the Claimant inviting him to a meeting to discuss his decision. The meeting was to take place on 6 January 2023.[59]Mr Smith has stated in his witness statement that he did not consider it necessary to re-interview Ms Legge-Wright or Mr Palmer.[60]When asked by the Claimant at the Tribunal hearing why Mr Smith did not refer to Mr Lunn’s statement, Mr Smith said that Mr Lunn’s account had been taken as part of Mr Palmer’s initial meetings. Mr Lunn had asked for his statement to be removed. In his witness statement, Mr Smith said that Mr Lunn did not wish to be formally interviewed by Mr Smith as what he said to Mr Palmer went against the Claimant’s version of events. Accordingly, Mr Smith (in answer to the Claimant’s question) felt no need to include Mr Lunn’s statement as there was enough information available to Mr Smith without Mr Lunn’s statement to make a decision. Mr Smith added that Mr Lunn’s statement was brought up at the appeal stage so the Claimant did not suffer any prejudice overall.[61]A report produced by Mr Smith dated 28 December 2022 was provided to the Claimant. In a section titled “Conflicting evidence”, the report said the following: “There is no suggestion or evidence for why someone would have attempted to “set” [the Claimant] up. The risk of bringing drugs to work in an attempt to set someone up and hope that the key fob fell of[f] that day is not plausible. As [the Claimant] confirmed it could have fallen out of someone’s pocket. The fact [the Claimant] lost his fob that day and it looks like it fell out of a pocket gives a very plausible and reasonable belief that these drugs have fallen out of [the Claimant’s] pocket. [The Claimant] was given an hour to think over whether he wishes to admit ownership of the drugs. After this hour he admitted they were his. [The Claimant’s] reason for why he took ownership does not sound plausible. The implications of possession of drugs are widely known. There is no benefit to admitting to the ownership of the drugs other than a lesser penalty if found to be true. This is what I believe [the Claimant] attempted after long thought but changed his decision when the manager pursued with conduct”.[62]As part of Mr Smith’s deliberations as set out his report, he considered the seriousness of the incident given that it related to a Class A drug that could have catastrophic circumstances if taken at work around machines. Mr Smith considered that on the balance of probabilities, the drugs are likely to be the Claimant’s. Mr Smith could find no other plausible explanation for why or how the Claimant’s fob, that he had just lost that day, was found with a bag of drugs in a walkway to the operational floor. He added that there was no plausible reason to admit the possession of drugs unless there is a benefit to the individual. If the drugs were not his, there was no benefit to admitting that they were. Therefore, according to Mr Smith, it is very plausible the Claimant admitted this as an attempt at a lower penalty only to change his decision when the conduct procedure started.[63]When questioned at the Tribunal hearing, Mr Smith stated that the proximity of the fob and the bag was enough for him to reach his decision. Mr Smith went onto say that the point about any admission or denial supported the finding, but was not the basis for it. Procedural issues[64]During the course of the process, the Claimant raised various issues concerning errors in procedure. These were also dealt with in Mr Smith’s report.[65]The first related to the Claimant not receiving certain letters. It was noted that the Claimant had attended every meeting as agreed and had received all required documentation.[66]The second concerned the precautionary suspension letters. The Claimant stated that these had not been sent throughout the process as they ought to have been. Mr Smith’s report said that these were sent originally by Mr Palmer. Once the matter was passed to Mr Smith, Mr Smith had advised that the Claimant would remain suspended for the duration of the case due to the seriousness of it and would inform him of any changes to this via telephone communication.[67]The final issue related to delays towards the end of the case pending decision. Mr Smith acknowledged that delays had occurred. He stated that HR advice was sought to aid deliberations. He added that Royal Mail were going through a period of industrial action during its busiest time of the year.
Conclusion
[68]It was decided that the Claimant had committed gross misconduct and summary dismissal was the appropriate remedy. The Claimant was dismissed with effect from 6 January 2023 without statutory notice. The Claimant was informed of his right to appeal. Appeal[69]The Claimant appealed against the decision to dismiss him. His grounds of appeal were as follows: “1. Inherently unfair due to mitigating circumstances not being taken into consideration. 2. Disproportionate penalty based on no factual evidence. 3. Miss application of the procedure EG. Timelines, conduct code”.[70]The Claimant also requested a neutral and unbiased appeals manager based outside the geographical area.[71]On 6 February 2023, Susan Knight-Smith, independent case manager, wrote to the Claimant stating that she had arranged to hear the Claimant’s appeal and that the appeal meeting would take place on 14 February 2023. This was later changed to 8 March 2023. The Claimant attended that meeting. He was accompanied by Sonia Michael from the CWU, the Claimant’s union.[72]In her witness statement, Ms Knight-Smith confirms that she did not believe that she needed to carry out any further investigations or to re-interview the witnesses involved in the initial investigation as she believed that everything had been properly investigated at the initial stages.[73]Ms Knight-Smith confirmed under cross-examination that she did have a copy of Mr Lunn’s statement and it did form part of her considerations. However, she did not consider it to be particularly helpful.[74]Ms Knight-Smith did speak to the Claimant. A record of this meeting, headed “Appeal Interview”, was produced by Ms Knight-Smith. At Ms Knight-Smith’s invitation, the Claimant recounted his version of events. This was broadly consistent with what he had previously said to Mr Palmer and Mr Smith. He added that, even when he took responsibility for the drugs, he had told Ms Wright-Legge that the drugs were not his. The Claimant further stated that with hindsight he would have responded differently.[75]The Claimant, through Ms Michael, made the suggestion that there was coercion from Ms Wright-Legge and that had caused the Claimant’s admission. Further, Mr Smith’s decision did not consider the Claimant's medical condition – the Claimant has heart issues and so using the drugs would have a significantly adverse impact his health. She further added that the penalty was disproportionate as there was no factual evidence, and a warning could have been given.[76]Ms Michael further alleged that the investigating manager should have looked at timelines, pointing particularly to whether the Claimant had been asked which stairwell he used and the times, whether any witnesses had been identified and, most importantly, what logic there would be for wrapping the fob in with the drugs.[77]In a letter stated to be dated 27 February 2022, Ms Knight-Smith wrote to the Claimant saying that the Claimant had been treated fairly and reasonably, and therefore the original decision was appropriate. As such, the appeal was rejected and the penalty stood. She enclosed her report on the matter.[78]The date of the letter cannot be correct given the timeline of events. The Conduct Appeal Decision Document states that the date of the appeal decision was 22 March 2023.[79]Under cross-examination, Ms Knight-Smith stated that the letter should have been dated 22 March 2023, and the 27 February 2022 date was an error. She denied any suggestion that the matter had been prejudged.[80]I find that the date stated on the letter was an error. It is not possible that the letter was written in February 2022. I accept Ms Knight-Smith’s explanation that this was a pro forma letter that had been copied over without the date being amended. Further, I do not see evidence that the matter had been prejudged. This is not least because Ms Knight-Smith considers and deals specifically with the issues raised by the Claimant and Ms Michael during the course of the appeal.[81]In her report, Ms Knight-Smith made the following points. The “two options”[82]In Ms Knight-Smith’s view, there was a “lot of unnecessary confusion with regards to the initial conversation with [Ms Wrigh-Legge]”. Ms Knight-Smith stated that she had carefully considered the issue and “simply did not understand why anyone would admit to owning the drugs or expect that by admitting it the matter would simply be closed” She added that “I also do not believe that it was ever realistic to believe that such a serious matter would “go away””. The Claimant’s medical condition[83]Ms Knight-Smith notes that the Claimant has heart issues and so he uses no drugs, as that would impact his health. Ms Knight-Smith stated that the issue is not drug use, it is the possession of drugs in the workplace. Disproportionate penalty[84]Ms Knight-Smith concluded that the penalty was not disproportionate. This was because drugs were found on site and the fob of the Claimant’s locker key was found in the bag that was wrapped around the drugs. She added that the Claimant had not been able to provide an explanation as to why this might have been the case.[85]She went on to state: “Even allowing for [the Claimant] withdrawing what he initially admitted I find that there is sufficient information to form a reasonable belief that he had brought the package of drugs onto the site”.[86]Further, when it was raised that there had been instances of employees attending for work under the influence of alcohol and then merely sent home rather than dismissed, Ms Knight-Smith stated that action would be taken on an individual basis. She added that she did not find this scenario to be a direct comparator to the Claimant’s situation. Procedure[87]Ms Knight-Smith stated that, having carefully considered this point, she did not find that it impacted on the outcome of the case. She referred particularly to the timeliness of the suspension reviews, correspondence not being “doubled” (i.e., two copies sent, one by a signed-for service and the other by normal post) and the matter taking a long time to conclude. In respect of the latter, she said that this was “undoubtedly true” but at the time the Respondent was dealing with a range of issues linked to the ongoing industrial action. Conduct policy[88]Ms Knight-Smith accepted that the Conduct Agreement suggests an informal or corrective approach be taken where possible and appropriate. However, she added that it also did suggest that some behaviours are so serious that they would justify dismissal. Other considerations[89]Ms Knight-Smith stated that the Respondent’s position with respect to illegal drugs was clearly set out and the Claimant was aware of it, as well as the consequences for breach.[90]She also noted that the Claimant appears to have been given notice of the meetings, was given the option to be accompanied and was given the opportunity to put forward his case. She further found that the meeting notes indicate that there was a reasonable level of discussion and the conduct manager (presumably, Mr Smith) did carefully consider his decision. Appeal decision[91]Ms Knight-Smith stated that it is not disputed that a package of drugs was recovered at PRDC on 23 August 2022 and that associated with the package was the fob from the Claimant’s locker key. She found that based on the information available and on the balance of probability that the Claimant was responsible for bringing the drugs onto the site.[92]In terms of penalty, Ms Knight-Smith stated that she was fully satisfied that the conduct notification of gross misconduct was proven and the decision to dismiss the Claimant was fair and reasonable. As part of this, she had taken into consideration the Claimant’s previous conduct record, length of service and the points of mitigation highlighted at the appeal hearing.[93]She concluded that the Claimant’s appeal was unsuccessful and 6 January 2023 remained his last day of service. Ms Michael’s evidence[94]In an unsigned letter dated 25 August 2023, Ms Michael set out what she describes as a statement that she had been requested to write by the Claimant. These appear to be conclusions based on her representation of the Claimant at his conduct code meeting as a CWU representative rather than as a direct witness of what happened on 23 August 2022.[95]Ms Michael stated that, during the initial part of the case, management at the Respondent could not prove that the packet of drugs belonged to the Claimant. She further stated that Ms Wright-Legge had suggested that due to “no hard evidence (apart from the small bag sitting next to a key fob that did belong to [the Claimant]) if he just admitted to the offence it would go away”. She went on to say that the Claimant commented “the only reason I’m willing to take responsibility for the situation is because of the offer I was made, however that the drugs did not actually belong to me” to which, according to Ms Michael, Ms Wright-Legge replied “That is not good enough” and “I have to get to the bottom of this”.[96]Ms Michael goes on to say that it was evident to her that none of what the Claimant was saying made any difference and it seemed that the decision had been pre-empted.[97]Ms Michael referred to the appeal and the Claimant’s points being dismissed. She focused in particular on the point that the packet was not in the Claimant’s possession and that the Claimant was not in the vicinity of the drugs when they were discovered on the floor outside the manager’s office. She added that the fob did not have the Claimant’s locker key attached to it therefore anyone could have dropped it. Further, the Claimant informed Ms Wright-Legge that the fob came away from his locker key and the Claimant did not think much about it as the fob was just a plastic tag. CCTV[98]In his witness statement, the Claimant states that it was only some months after the appeal was concluded that he found out that he had the right to request CCTV footage of himself. The Claimant contacted the Royal Mail Security Helpdesk, but was told that the CCTV footage was no longer available.[99]At the hearing, Mr Smith stated that there was no CCTV in the corridor in which the plastic bag was found. Law[100]Section 94 of the ERA 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 ERA 1996. The Claimant must show that he was dismissed by the Respondent under section 95 ERA 1996. Dismissal[101]There is no dispute that the Claimant was dismissed by the Respondent.[102]The next stage is for the Tribunal to consider the reason for the dismissal, and if appropriate, the question of fairness. Reason for dismissal and fairness[103]Section 98 of ERA 1996 deals with the fairness of dismissals. There are two stages within section 98. First, the employer must show that it had a potentially fair reason for the dismissal within section 98(2) ERA 1996. Second, if the Respondent shows that it had a potentially fair reason for the dismissal, the Tribunal must consider, without there being any burden of proof on either party, whether the Respondent acted fairly or unfairly in dismissing for that reason.[104]Section 98(4) ERA 1996 deals with fairness generally and provides that the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend 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 sufficient reason for dismissing the employee; and shall be determined in accordance with equity and the substantial merits of the case.[105]In misconduct dismissals, there is well-established guidance for Tribunals on fairness within section 98(4) ERA 1996 in the decisions in British Home Stores Ltd v Burchell [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. Then the Tribunal must decide whether the employer held such genuine belief on reasonable grounds and after carrying out a reasonable investigation.[106]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) ERA 1996, the Tribunal must decide whether the employer acted with the band or range of reasonable responses open to an employer in the circumstances. It is immaterial how the Tribunal would have handled the events or what decision it would have made. Critically, the Tribunal must not substitute its view for that of a reasonable employer (see Iceland Frozen Foods Limited v Jones [1982] IRLR 439, Sainsbury’s Supermarkets Limited v Hitt [2003] IRLR 23, and London Ambulance Service NHS Trust v Small [2009] IRLR 563).[107]More will be expected of a reasonable employer where the allegations of misconduct, and the consequences to the employee if they are proven, are particularly serious (see Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721).[108]Any relevant Code of Practice must be taken into consideration by the Tribunal insofar as its provisions are relevant. The most relevant here is the ACAS Code on Disciplinary and Grievance procedures.
Conclusions
[109]It is not in dispute that the Respondent dismissed the Claimant because it believed that he was guilty of misconduct. Misconduct is a potentially fair reason for dismissal under section 98(2) ERA 1996. The Respondent has satisfied the requirements of section 98(2) ERA 1996.[110]The Respondent held a genuine belief that the Claimant was guilty of misconduct. The evidence that I have before me is clear about why the Claimant was dismissed, the dismissal and appeal letters were unequivocal and the Claimant has not challenged the Respondent’s genuine belief in this regard.[111]In light of the above, the Claimant challenges the Respondent’s decision to dismiss him on a number of further grounds. I deal with these below. Investigation[112]It is agreed that the Respondent had grounds to initiate an investigation. However, the Claimant contends that the Respondent did not carry out a reasonable investigation.[113]The Respondent states that a proper investigation was carried out, including all the usual steps under the ACAS Code. In addition, the Respondent’s policies (which go further than the ACAS Code) were followed. Informal meetings[114]The Claimant states that he did not have the opportunity to have informal meetings with Mr Palmer and Mr Linden. As stated above, I accept that no such meetings took place. However, I do not consider that this impacted the investigation or the overall disciplinary process in any material sense. The Respondent’s investigation did not rely on the informal meetings. Further, the Claimant had the opportunity to make the points that he wanted to make during the course of the formal meetings, including the appeal. Further witnesses[115]The Claimant states that the Respondent should have interviewed other people with respect to the events in question.[116]The Claimant is, however, unable to name any of them. He has not provided names of people who may been able to provide further factual evidence. Further, the Claimant has been unable to identify anyone who may have been involved in setting up the Claimant with the drugs. The Claimant said that he got on with 95% of the people at his workplace and 5% he did not interact with. The Claimant’s overall point is that the drugs were not his, so either someone innocently put the bag with the drugs and the key fob together, or the Claimant was set up. However, given that no person or group of people could be identified in either of these categories, I accept the Respondent’s assertion that it would have been difficult to investigate these issues further and the Respondent’s actions were reasonable in this regard. CCTV[117]The Claimant states that there was no CCTV footage produced by the Respondent to dispute his claim that he was on the work floor consistently for up to 30 minutes before the alleged incident took place. The Respondent has stated, and I accept, that the CCTV did not cover the corridor where the plastic bag was found.[118]Accordingly, although the CCTV may have covered aspects of the PRDC premises and, as such, parts of the Claimant’s movements, they would not have been comprehensive. Critically, they could not assist with who may have dropped the plastic bag in the place where it was found by Ms WrightLegge.[119]In light of this, I find that, although it may have been helpful to have obtained the relevant CCTV material, not least to put the Claimant’s mind at rest about the issue, such CCTV material could not have helped with the central question of what happened in the corridor where the drugs were found. Claimant’s medical condition[120]The Claimant offered to be blood tested and points to his medical condition as demonstrating that he would never use the drugs.[121]However, the basis for the decision was possession rather than use. Although the Claimant states that it makes no sense for the Claimant to be in possession of the drugs when not using them, it was possession of drugs that the Respondent relied upon in order to make its decision. Admission[122]A lot of time was spent on what was said at the Claimant’s (informal) meetings with Ms Wright-Legge following her discovery of the drugs. As I stated above, I find that the Claimant did make an admission. However, I accept that this was at a time of considerable stress for the Claimant and he may not have been thinking straight. In addition, there may have been some confusion as to what was said. This is shown by the slightly differing accounts of what happened as set out by the Claimant, Ms Wright-Legge and Mr Lunn. Accordingly, although, the admission was made the Claimant, I do not place any weight on it.[123]The Respondent has confirmed when asked on what basis the decision was made that most weight was placed on the fob and the drugs being found together. The Claimant’s admission was an additional point that supported that outcome. Although both Mr Smith and Ms Knight-Smith refer specifically to the admission in their respective reports, they both say that they had sufficient to base their decisions on the proximity of the drugs to the key fob. I accept this.[124]As such, any weight they may have placed on the admission is not considered as part of the relevant legal test here. I, therefore, do not concern myself with whether or not the Respondent’s actions were reasonable in light of any admission by the Claimant. Procedural matters Letters not received[125]Although certain letters may not have been received in the form required, I do not find that this fundamentally impacted the process. This is not least because the Claimant received notice of relevant meetings and was provided with all relevant documentation. Suspension[126]Similarly, although suspension update letters may not have been sent by the Respondent or received by the Claimant, the Claimant was in no doubt that he remained suspended. As such, I do not consider that this materially impacted the process. Delays[127]The Claimant says that the delays were unacceptable. There were large gaps between contact, even from 24 August 2022. He further states that this was detrimental to the Claimant.[128]The Respondent states that there were slight delays at points. There was industrial action at the time that slowed the process down.[129]I do find that there were delays and that the overall process should have taken less time than it did. I accept that the Respondent was the subject of industrial action at the time. However, this does not mean that matters as important as an individual employee’s employment can be left hanging.[130]In light of all the circumstances, though, I do not consider that the delays caused the process to be unfair to the Claimant. This is because the delays, although they occurred, did not push the process into the realms of being unreasonable. Mr Lunn’s interview[131]The Claimant states that he was not aware of the witness statement of Mr Lunn until the appeal hearing, and he was only able to read it sometime after. Both Mr Smith and Ms Smith-Wright have said that they did not place material emphasis on Mr Lunn’s statement.[132]The statement should not have been omitted by Mr Smith. However, it was taken into account at the appeal stage, so any defect in terms of the overall investigation was remedied. There remains the issue as to whether the failure to disclose the statement materially prejudiced the Claimant. I find that it did not. Although, it provides a further contemporaneous account of the events after the discovery of the drugs by Ms Wright-Legge, it does not add much, if anything, to the central question of whether the drugs were in the possession of the Claimant. This, particularly in light of my finding with respect to the Claimant’s admission, leads me to conclude that the absence of the statement being disclosed to the Claimant did not materially affect his defence of the central issue in the matter. Appeal[133]I find that there was nothing untoward about the date of the appeal letter. It was a simple mistake and not evidence that the matter had been prejudged. The relevant test[134]In light of the relevant points, I consider that it was reasonable for the Respondent to conclude that the drugs and the Claimant’s key fob were found together. Further, it was reasonable for the Respondent to conclude, as a result, that the drugs were in the Claimant’s possession prior to them falling on the floor and then being found by Ms Wright-Legge. I accept that no police action was taken and there have not been any criminal proceedings in this regard. It may be that a criminal court following a criminal investigation may have reached a different set of conclusions to the Respondent. However, that is not the test here. The test, as set out in the legislation and case law, is whether the Respondent acted reasonably. I find that it did.[135]For the reasons set out above, I do not find that the investigation was unreasonable nor that any procedural flaws made the Respondent’s actions unreasonable.[136]I accept more will be expected of a reasonable employer where the allegations of misconduct, and the consequences to the employee if they are proven, are particularly serious. The allegations in this case, and the consequences for the Claimant, are very serious. However, even with this higher standard, I find that the Respondent acted reasonably.[137]In terms of penalty, the Respondent contends that the matter involves the possession of “Class A” drugs. This falls within Respondent’s policies and, as stated in Mr Smith and Ms Knight-Smith’s witness statements, the safety sensitive environment of PRDC also needs to be taken into account. As such, the Respondent states that, in the circumstances, a lesser sanction would not have been applicable.[138]I find that, given these circumstances and the serious nature of the possession of drugs in the workplace, the dismissal by the Respondent was within the band of reasonable responses available to the Respondent. Claim[139]In light of the points set out above, the Claimant’s claim for unfair dismissal does not succeed.