Mr J Bhundia v Royal Mail Group Ltd: 3310210/2022
JUDGMENT
[1]The respondent concedes that it failed to pay the claimant in respect of accrued leave not taken. By consent it is adjudged that the respondent is to pay to the claimant the sum of £2,424.00[2]The claimant’s complaints of unfair dismissal, unfair dismissal because of trade union activities, disability discrimination and wrongful dismissal are not well founded and are dismissed.REASONS
[1]In the claim form that was presented on 10 August 2022 the claimant made complaints of unfair dismissal arising from section 152 of the Trade Union and Labour Relations (Consolidation) Act 1992, where he states that it arose from trade union activities. The claimant also made a complaint of unfair dismissal pursuant to section 98 of the Employment Rights Act 1996. The claimant complained of direct disability discrimination and discrimination arising from disability. The claimant also complained that the respondent was in breach of its duty to make reasonable adjustments.[2]The Tribunal was provided with evidence from the claimant. We also heard from Mr Khurram Khan and the claimant produced a witness statement from Mr Umair Khan. The respondent relied on the evidence of, Mr Blakiston and Ms Turley, who are managers employed by the respondent.[3]We were provided with the bundle of documents containing 503 pages of documents.[4]After the Tribunal had heard evidence, heard submissions from the parties, had deliberated and reached decision, but before the decision was announced, the claimant’s representative produced a document which is the National Conduct Agreement between Royal Mail Group and the CWU and Unite. This document appears to have been created in 2015. The document was not produced in the 2 503 pages of documents that formed the trial bundle. The document was not put to the witnesses in the case, it was not put to the claimant, it was not put to Mr Joe Blakiston and it was not put to Lisa Turley.[5]Mr Khurram Khan says that we should take into account the document because it shows two things. The first is that there was a failure to comply with an essential part of the procedure in that an executive summary was not included in the documents which were provided at the formal conduct meeting; the second aspect of it, as I understand it, is that under this agreement there is a special appeal procedure that is available for trade union representatives who are taken through the conduct process.[6]However, both of those points were, in some way or another, put to the witnesses for the respondent. Mr Blakiston stated that as far as he was aware the claimant was a trade union representative and that there was an informal resolution process that existed in respect of trade union representatives and that, as far as he was concerned, that had taken place in the claimant’s case. The new document was not put to Joe Blakiston, and no particular part of it was said to have not been complied with. It was not put to Joe Blakiston that he had breached any part of the conduct agreement. Jo Blakiston was asked about the executive summary and he explained that the executive summary was not included among the documents he considered.[7]Lisa Turley, was asked about the executive summary and, her evidence, in relation to the executive summary, was that she made enquiries about the executive summary and obtained no answer from the lead security investigator. The answer came from her manager, Mr Green. He explained to her that ‘Amara’ had carried out the investigation and, at the time that Mr Green was making enquiries, she was not available. The Lead Security Field Manager, Dave Butcher was available when Mr Green made enquiries about the absence of the executive summary on 23 August 2022, and Dave Butcher gave the following explanation to Lisa Turley: “Amara wasn’t in my team. However my understanding of this case was that Mr J Bhundia was initially being investigated by her, but before Amara could interview him Mr Bhundia went sick. He remained of sick for at least seven or eight months if not considerably longer and due to this prolonged absence, he was never interviewed by the Investigation Team. Because he was not interviewed by the Investigation Team the executive summary would not have been completed. When he returned from sick leave Amara was no longer in the Investigation Team and Mr Bhundia was dealt with through conduct by his line management. CCTV was available I believe Operations had sight of.” He then says that he has been unable to contact Amara. That is the email which was referred to in the evidence which was given by Lisa Turley.[8]The Conduct Code Booklet adds nothing to the evidence that we have heard already, to the extent that there is relevance in the booklet itself we have only been referred to a passage on page 7 of the booklet where reference is made to an executive summary being created by Royal Mail’s Security Group.[9]In so far as the question of whether the appeal was conducted in the appropriate way, we have not been taken to any part of the booklet which indicates that, in this case, at the time when the claimant was going through the appeal process, 3 the claimant ought to have been taken to the special appeal panel for tr ade union representatives even though at that a time he was no longer a trade union representative. There does not appear, in our perusal of this document, to be anything that says something along the lines of, if a person is a trade union representative at the start of the process, they are to be dealt with as a trade union representative even though they are not a trade union representative at a different point in the journey through the process.[10]That question was specifically asked of Lisa Turley in the course of the hearing, we put that question to Lisa Turley and she said it is not something that she had ever considered, and her view was that she acted appropriately in dealing with the claimant as though he was not a trade union representative at a time when in fact he was not a trade union representative.[11]The claimant did not attend the Tribunal hearing on two days. He did not attend on 30 October, and he did not attend on 31 October when judgment was given in this case. We pointed out that we considered that it was discourteous of the claimant to fail to explain that he was not going to be attending the hearing on those days.[12]The Tribunal asked that the claimant confirm that he was content for the proceedings to continue in his absence. Khurram Khan, representing the claimant sent to the tribunal an email which he said was containing the claimant’s consent that the proceedings were to continue in his absence and so we have continued with the hearing. The option of the claimant being able to participate in the proceedings by video link was raised with Khurram Khan and the option was not taken up.[13]With those preliminary issues resolved I turn now to the tribunal’s decision in relation to this case.[14]The conclusion of the Tribunal is that the claimant’s complaints are not well founded and are to be dismissed.[15]Stepping back from this case and trying to apply to it an executive summary of the case that we have heard: this was a case of an employee of the Royal Mail, who had been employed since 2007, who was purportedly seen carrying out a fraudulent transaction, which was caught on CCTV, of using a stolen credit card. His manager identified him as the person using the card and formed the view that he had lost trust in the claimant and so ordered his dismissal. An appeal took place. The appeal officer was satisfied that it was clear from the video that a person who knew Mr Bhundia would be able to tell whether it was him on the video and she upheld the dismissal decision. Considering the sanction, she was of the view that it was too serious a matter for a lesser sanction than dismissal.[16]The claimant’s case is that he suffered from a disability and was off work for an extended period of time. By the time of his dismissal, the claimant had been absent from work for something in the region of 600 days. The claimant says that he was discriminated against on the grounds of his disability in being dismissed because the reason that he was dismissed was because he was disabled, and he suffered a disadvantage in not being able to engage in the disciplinary process because he was disabled. A disciplinary process that started in January 2021, that resulted in a dismissal which took place in May 2022 and 4 finally concluded in an appeal hearing which took place in Jan uary 2023. The claimant was dismissed some 15 or 16 months after the disciplinary process started.[17]Throughout the investigation stage, the disciplinary stage, and the disciplinary hearing stage, the claimant did not engage. The claimant did not engage with the fact finding or the formal disciplinary meeting. Throughout that time the claimant stated that he was unwell and unable to work. He was unable to engage notwithstanding various adjustments which were made in order to assist him.[18]The Tribunal’s view is that it is clear beyond doubt that the reason for the claimant’s dismissal was because his managers believed that he was responsible for an act of serious dishonesty even if it was in respect of a small amount. It displayed blatant dishonesty.[19]The sanction of dismissal in our view, is one which a reasonable employer could reasonably consider appropriate in such circumstances, and the procedure that was followed in this case is a procedure which, in our view, is one that a reasonable employer could reasonably have followed. We consider that all this is evident when one considers the factual background in this case which is as follows.[20]On 28 January 2007 the claimant began his employment with the respondent as an Operational Postal Grade (“OPG”), a postman. At the point of his dismissal the claimant would have been entitled to 12 weeks’ notice on termination of his employment.[21]On 29 December 2019 there was a series of fraudulent transactions which were carried out at the Royal Mail premises. An investigation commenced undertaken by the Investigations Branch, or Security Branch of Royal Mail. That investigation began in about January/February 2020. A number of documents were obtained including witness statements. Information was obtained from various banks relating to a number of credit cards which were found on the Royal Mail’s premises. There was also CCTV footage obtained which purported to show an individual using the relevant credit card at a food vending unit in the Royal Mail premises at a time that matched precisely a fraudulent use of the card at that location. The CCTV footage showed an individual whose face could be seen in part, could be seen briefly from a frontal view, could be seen from a side view, could be seen from the back, and could be seen walking. The view of the Tribunal is that a person who knew the individual would be would be capable of forming a view as to whether it was that particular person or not.[22]In this case, the claimant says it was not him. Khurram Khan says it was not the claimant and Umair Khan also says it was not the claimant. However, Joe Blakiston, who was the claimant’s manager, and Dave Solman, who was another person who worked for the claimant, were both positive in their identification of the person on the CCTV footage being the claimant.[23]From 26 May 2020 the claimant was off sick. He was to remain of sick until his employment ended. In fact, he was to remain sick even after his employment ended and was not fit for work at any time throughout the process that was followed by the respondent which came to an end in January 2023.[24]The claimant should have had an interview during the course of the investigation 5 carried out by the Security Branch or the Investigation Branch of Royal Mail. However, because he was off sick, no interview of the claimant took place. By January 2021, a year after the matter was first under Investigation, enquiries were made by Colin Threlkeld in relation to the claimant’s case. The position was that Colin Threlkeld was aware that:(i) the claimant had been absent from work since 26 May 2020; and(ii) that this investigation had been outstanding over this period of time. 25 He sought advice from the HR, and he emailed Katie Simpson. One of the things he said in his email of 5 January 2021 was that: “We’d like to terminate his contract due to theft - what’s the best way to approach the situation please”. The claimant relies upon this comment as an indication that there was a pre-judgment in his case.1 26 On 5 January 2021 Katie Simpson responded to Mr Threlkeld’s email and she stated: “You need to progress the conduct case, although he is off sick (shielding) this doesn’t mean the case ceases. You would complete it either a video chat using Teams, conference calls or in writing. The initial step would be to call him and explain the allegations and for him to explain. From here you would progress with the fact find. Let me know if he refuses to participate in this format, as we can amend the letters to explain we cannot delay due to lockdown as we do not know how long this will be in place and is unreasonable. As the meeting is likely to take place virtually, I would recommend asking him for an email address as you will need to share the IB report and any other evidence at the start of the meeting. You will need to allow him time to read it, before you then progress to asking questions. If you assign a manager to the case, I am happy to review the questions they are going to ask and will add / amend them if needed - and will look to work with them as case management and have a call after each meeting. You need to follow the full conduct code though, as if not a tribunal will automatically award in his favour if you dismiss. It’s illegal in employment law to end a contract without following a formal process - even if we have solid evidence that they have done what they are accused off.” 27 That is the response that was given to Colin Threlkeld by Katie Simpson, from the respondent’s HR department, to the email in which he had indicated that “we’d like to terminate his contract due to theft”. 28 What happened next is that Abdul Mohammed (Work Area Manager) was appointed as the fact finding manager. Abdul Mohammed wrote to the claimant on 10 January inviting him to attend a fact finding meeting. The claimant was told that the interview would take place on Sunday 17 January at 1 o clock. The weekend date was provided because the claimant’s normal working days were at the weekend. The claimant was told that due to the covid 19 concerns the claimant may have concerns about attending the interview in person and therefore it was proposed; that the claimant could attend the interview as scheduled in person, he could attend the interview over the phone, or the could 1 When the oral judgment was being given by the Judge, Khurram Khan packed his bag to leave at this point, and then after a short exchange with the judge walked out. 6 conduct the interview via a video call. 29 On 15 January, the claimant indicated that he was unable to attend because at he was on sick leave and asked for the interview to be delayed until after his return to work “when I feel better and my health improves”. 30 On 19 January the claimant again contacted the respondent and stated that he did not know when he would be fit to attend an interview, but he was not fit enough at that point. That further response came as a result of an enquiry from Abdul Mohammed as to when the claimant would be able to attend. Abdul Mohammed then wrote to the claimant saying that he could not delay the conduct meeting indefinitely. He requested the claimant’s consent so that he could refer him to Occupational Health so they could assess if the claimant was medically fit to participate in the conduct case. Abdul Mohammed also asked the claimant what adjustments could be made in order to allow the claimant to participate. 31 The claimant gave his consent for his referral to occupational Health and on 9 February 2021 Abdul Mohammed was informed by Khurram Khan that the claimant was a union representative, and it was necessary to follow the appropriate procedures. 32 We heard evidence from Joe Blakiston that he was aware that the claimant was a trade union representative and that, as a result, it was his understanding that the appropriate processes were followed. It is important to note that it was not Joe Blakiston himself who would have been carrying out these procedures which, according to the evidence given by Joe Blakiston, involved a process of informal mediation before the formal process started. It is also important to note that during the course of the Tribunal hearing, Joe Blakiston did not have the Code of Conduct booklet which sets out the procedure for dealing with trade union representatives put before him. It was not stated whether he had breached any particular aspect of that procedure. It was pointed out that when he was dealing with the case there was no executive summary, something that Joe Blakiston agreed with. 33 There was then a gap until about June of 2021 when the claimant appears to have been the subject of a referral to Occupational Health. There are a number of questions asked of Occupational Health. 34 A further fact finding interview was arranged for the claimant to take place on 31 July 2021. The claimant could not attend on that occasion and that was put off. A further fact finding interview was arranged to take place on 7 August. In respect of that meeting the claimant indicated that he would try to participate at the fact finding meeting. 35 By then the claimant had been informed by Abdul Mohammed that because of the circumstances, there are a number of options and he set out four options. The first was for the case to proceed on a face to face meeting, the second was to proceed with a face to face meeting with the adjustment of allowing the claimant time to participate in writing, the third option was that the meeting could take place via video conference or, the fourth option was for the claimant to participate in writing with the assistance of a third party if needed. The claimant indicated that he would try to participate using option 4. 36 The claimant did not attend on 7 August. That meeting did not take place. The 7 claimant wrote to the respondent indicating that he had heard nothing fr om the investigating officer. The claimant may have been entitled to make that complaint at that point for the simple reason that, although he was offered the four options, when a further invitation to attend a meeting was made, it was not clear how he would be able to participate in the fourth option. 37 The claimant wrote on 12 August to the respondent stating that he had received correspondence indicating that he had failed to attend the fact finding meeting and he indicated that he felt that it was wrong that was the case because he had responded to correspondence from Ivan Gideon (Work Area Manager) and Abdul Mohammed in which he had indicated a willingness to participate using the fourth option that had been offered. 38 The claimant was written to on 13 November and informed that he would be given a final chance to attend the fact finding interview. The fact finding interview was scheduled to take place on 13 November at 11 o clock. That fact finding interview again did not take place. 39 On 17 November the respondent decided that it was necessary to move the situation forward and that higher authority was required for the case to be able to proceed. At that stage, the case was passed to Joe Blakiston. Joe Blakiston, knew that the claimant was a union representative and, as far as he understood, the normal procedures in relation to conduct investigations involving union representatives had been carried out. It is not clear from the evidence given by Joe Blakiston whether it was at this point in November 2021, or earlier around February 2021, when the claimant’s trade union status was considered by the respondents under the informal process. None of the witnesses who gave evidence in this hearing are people that would be participating in that part of the process. 40 The claimant wrote to the respondent on 15 November indicating that he had missed the fact finding meeting on 13 November because of confusion about, presumably, the date. The claimant referred to “my health conditions and ongoing memory issues”. This was the first occasion when the claimant had provided an explanation for not attending a fact finding meeting. On all previous occasions the claimant had stated that he was unfit to attend before the meeting and not attended or alternatively had simply not attended. 41 The claimant wrote on 22 November stating that the respondent had misunderstood his position and what he needed from the respondent was to be able to write to the respondent and to be written to. For him to be asked questions that he could reply to in writing as part of the fact finding. 42 The claimant wrote on 27 November that he was still too ill to participate in a fact finding investigation or interview of any kind. The claimant’s GP in a letter on 26 November 2021 had stated that the claimant cannot attend interviews because of anxiety, stress and a lack of concentration 43 The claimant was invited to attend a further fact finding interview on 4 December 2021. Again, the claimant did not attend. It is not clear what efforts were made again at this stage to facilitate the claimant’s ability to attend in writing at this meeting. It appears that the respondent was simply expecting him to attend and then the adjustments to take place. 8 44 By January 2022 the claimant had been off work for a period of some 608 days as of 24 January. The claimant had had six Occupational Health referrals made between 15 February 2021 and 28 July 2021. The Occupational Health referrals had been unsuccessful because of being cancelled, midway, by the Occupational Health Practitioner. 45 In February 2022 it was confirmed that the claimant was no longer a trade union representative. 46 In February 2022 the claimant was sent a list of questions and asked to respond to the questions by 4 March. He was given seven days from receipt of the questions to respond. The letter to the claimant stated that the claimant could be assisted by a trade union representative or a work colleague in providing the answers. There were some 21 or so questions that the claimant was asked to answer. 47 On 4 March 2022 the claimant replied saying that he could not answer the fact finding questions because of his depression and stress. He explained that he was taking depression tablets. He also asked to be provided with evidence from the investigation and asked for a copy of the CCTV footage. The claimant requested a further referral to Occupational Health. 48 There was a further referral to Occupational Health made and the claimant was sent copies of the CCTV footage. 49 On 12 March 2022 the claimant was given a further opportunity to produce answers to the questions in writing and he was asked to do so by 18 March. The correspondence to the claimant included the warning that, if he chose not to respond, his case will be passed up the line and may potentially lead to dismissal. 50 The claimant responded to Ivan Gideon on 14 March indicating that his health was such that he was not able to respond. He stated that his health was his first priority and that his mind is not working at all. 51 The claimant was told on 31 March 2022 that his case would now be referred to Joe Blakiston for consideration of any further action. It should be noted that, whilst the claimant had been told in November 2021 that his case would be passed to Joe Blakiston, it in fact stayed with the investigation fact finding officer and transferred from Abdul Mohammed to Ivan Gideon but stayed at the same level. It was not until March 2022 the claimant’s case actually went up a stage to Joe Blakiston who is a person who would have had authority potentially to dismiss the claimant. 52 On 2 April 2022 the claimant was invited to a formal conduct meeting to take place on 6 April. 53 The claimant wrote on 5 April saying that he is not in the right state of mind to attend the meeting on 6 April as: “I am suffering seriously from stress and depression, and I am taking depression tablets and kindly please refer me to OHS. I need their support urgently. I have not done anything wrong and no theft whatsoever.” 54 On 6 April a further invitation was sent to the claimant to attend a formal conduct 9 meeting on 10 April. This invitation enclosed a list of questions for the claimant. The claimant was told that he could fill out the answers and return them and they would be considered at the formal conduct meeting. 55 The claimant’s response on 9 April was to say that he is unable to attend as he was suffering from stress and depression and was taking medication. He again asked for all CCTV evidence, and he said that “I haven’t done anything wrong and shouldn’t be dismissed.” He explained that he was suffering from memory loss. 56 Joe Blakiston proceeded to consider the claimant’s case and made the decision that the claimant’s employment should be terminated. He wrote to the claimant on 1 May and in his letter he said: “Due to your non-attendance and not returning the reply to the list of questions that I asked, I have carefully considered all the circumstances of your case and reached my decision based on the evidence that I have to hand. I have made the decision to confirm the outcome in writing rather than in a face to face meeting as you have not attended any meetings to date. Decision Result: After careful consideration of all the evidence my decision is that you will be summarily dismissed without notice and your last day of service will be Wednesday 4 May 2022.” The dismissal letter was accompanied by a report. The report of three pages set out a summary of the background. There was a section headed “Deliberations”. In that section it reads: “Mr Bhundia’s account in mitigation. In at least two emails from Mr Bhundia, Mr Bhundia has written he has done nothing wrong, however there has been no evidence provided by Mr Bhundia explaining the CCTV footage. Mr Bhundia has had multiple opportunities to convey his side of events through a medium of his choosing during the Fact-Finding stage of the investigation also the conduct code interview as well. Mr Bhundia has decided not to do so. Therefore I have had to determine what had happened with the evidence that I have to hand, minus Mr Bhundia’s input”. There is a section which is headed the “The CCTV evidence and transaction history” and he records as follows: “There is no doubt that Mr Bhundia is the person that can be seen in CCTV footage of both videos. I clearly recognise him and have been either a first or second line manager to Mr Bhundia during part of his time at Jubilee Mail Centre. The video shows Mr Bhundia using a credit/debit card to make a purchase, the second video shows a close up of Mr Bhundia getting the credit/debit card that he used to make the purchase from his wallet.” There is a section which is headed “Conclusions”. That includes the following extract: “The evidence shows that Mr Bhundia did use a stolen credit card on 29 December 2019 to make a purchase in the canteen at the Jubilee Mail Center at 6.11am. It is extremely likely that Mr Bhundia used the stolen credit card later on the same day to make two more purchases at both Asda and the Tesco in Hayes. I believe Mr Bhundia ensured that the purposes were as close to the contactless limit as possible which is £30. Additionally further supporting this conclusion is that Mr Bhundia lives in Hayes, a 10 Tesco and Asda where the stolen credit/debit card were used were both in Hayes. I have no doubt that Mr Bhundia did steal the debit/credit card and made the purchases with it. Our customers place their trust in us to safely and accurately deliver their mail. This trust was broken by Mr Bhundia whose behaviour dented the trust that the customer should have in us. Mr Bhundia has offered no points of mitigation for his behaviour although there are no points of mitigation that will justify the theft of that customer’s credit/debit card. Prior to making the decision I did consider Mr Bhundia hasn’t attended any meetings, but I didn’t feel the case could be delayed any further. Support had been offered in the past and time was given to allow Mr Bhundia to obtain treatment. Given he is still confirming he cannot attend the meetings I do not believe any further delays would resulted in him participating in the case.” Then the decision includes the passage: “Theft of customer’s mail pieces or the contents of that mail piece with the intention of further using the credit/debit card to defraud the customer is gross misconduct and the only appropriate penalty is to summarily dismiss without notice. I did consider if a lower penalty would be appropriate such as suspended dismissal. However, given the serious nature and the loss of trust, I do not believe this would be.” 57 The claimant’s employment with the respondent thus came to an end on 4 May 2022. 58 The claimant lodged an appeal against his dismissal. The claimant was invited to attend an appeal meeting on 18 May. That appeal meeting however did not take place at that time. Lisa Turley was appointed to conduct the appeal meeting. Lisa Turley obtained evidence relating to the enquiries that had been made by the Investigation Branch or the Security Branch of Royal Mail. They had been making enquiries which could have potentially led to criminal proceedings. She obtained evidence about the history of the claimant’s referrals to Occupational Health. Lisa Turley also agreed to make a further reference of the claimant to Occupational Health. She informed the claimant that she was making a further Occupational Health referral in circumstances where there was a history of Occupational Health referrals being unsuccessful. She said that she will conclude the appeal based on the information she has in the file. She also requested that the claimant provide her with any medical evidence that he wanted to rely upon. She asked that the claimant provide his grounds of appeal because whilst he has indicated the desire to appeal he had not set out the basis of any appeal at that stage. 59 On 9 June the claimant provided a five page document setting out his grounds of appeal. 60 An Occupational Health report was received on 23 June. That Occupational Health report referred to the claimant having anxiety and depression, confusion, loss of memory and poor concentration. The report maker considered that he required information from the claimant’s GP in order to further understand those conditions. 61 A feature of the claimant’s case has been that there was an absence of an executive summary from the investigation by the Security Branch. This was explained in an email which was provided to the claimant from the Lead Security Field Manager, the contents of which we referred to at the early part of this 11 judgment when dealing with the late disclosure of the Conduct Code Booklet. The explanation is simply that because the claimant was not interviewed by the Investigation Team an executive summary was not completed. This email also explains an issue which was raised by the claimant at some stage about the delay between December 2019 and January 2020 to the investigation beginning in January 2021, namely in that period of time there was supposed to be an investigation being conducted by the Security Branch, but that investigation was not able to proceed because the claimant was off sick, and nothing happened on it. Eventually the matter was passed back to the claimant’s management line to be dealt with under the conduct procedure rather than being pursued as a potential criminal investigation. 62 The matter goes cold for a period of time until about November when Lisa Turley again contacts the claimant saying that Occupational Health had still not received a response from the claimant’s GP in respect of the questions that had been asked. 63 The claimant meanwhile wrote to Lisa Turley asking for a further referral to Occupational Health. What appears to have happened at about this time is that there was some confusion between the claimant’s GP and Occupational Health. The GP had answered the questions asked by Occupational Health but the answers to those question do not appear to have arrived where they ought to have arrived. However, matters were resolved and in December 2022 an Occupational Health report was prepared in the light of information which was received from the claimant’s GP. In that further Occupational Health report it was indicated that the claimant was having a Stress Defective Disorder and CBT was being recommended as a way of treating the claimant’s memory issues which were thought to be due to depression. 64 The claimant was provided in January 2023 with evidence from David Solman, Mick Sel, a further Occupational Health report dated 27 June 2022, details of email conversations with the Lead Security Field Manager. He provided further submissions to Lisa Turley. He complained that the statements of Mick Sel and David Solman should have been provided to him earlier and it was unfair that it was not provided to him at the dismissal stage. It is important to note that Joe Blakiston did not have the statements of Dave Salmon or Mick Sel at the formal conduct meeting stage. Had he had them and considered them they would undoubtedly have, overall, bolstered the case against the claimant. The reason Joe Blakiston did not provide those statements to the claimant was because he did not have them and know to provide them to the claimant. 65 The claimant provided a further sick note and that sick note indicated that he continued to be unfit for work and that he would be unfit for work during the period between 9 December 2022 and 9 March 2023. 66 The claimant’s appeal took place on 20 January 2023 and a decision was made to uphold the dismissal. 67 The report prepared by Lisa Turley explains her reasoning. In her decision she stated that the evidence shows that the claimant made a fraudulent transaction from a lost credit card which was then concealed in the toilets of Jubilee Mail Centre, and she believed that the claimant had stolen the card from mail entrusted to Royal Mail. She states that she took into account mitigation, which 12 was his health conditions , which included breathlessness, severe memory, loss which meant he did not recall working at the Jubilee or manager’s named and also his stress and depression. She considered his mental health issues but came to the conclusion that the issues were not such as to mitigate the claimant’s behaviour. She also stated that she considered a penalty lesser than dismissal but concluded that she cannot risk a recurrence of his actions and made the decision to dismiss the claimant. 68 The claimant’s case is that his dismissal was on the grounds of trade union activities. He relies on section 152 of the Trade Union and Labour Relations (Consolidation) Act of 1992 which provides that: “(1) … the dismissal of an employee shall be regarded as unfair if the reason for it (or, if more than one, the principal reason) was that the employee— (a) … (b) had taken part, or proposed to take part, in the activities of an independent trade union at an appropriate time, or had made use, or proposed to make use, of trade union services.” 69 The claimant says that he was dismissed because he ceased to be a CWU Union Representative having previously taken part in the activities of and made use of the services for the CWU as a representative and therefore being only a member of the CWU, from about February 2022, so the claimant should be regarded as unfairly dismissed. 70 The claimant also claims unfair dismissal pursuant to section 98 Employment Rights Act 1996 . 71 Section 98 of the Employment Rights Act ("ERA") provides that in determining whether the dismissal of an employee was fair or unfair, it shall be for the employer to show the reason (or, if there was more than one, the principal reason) for the dismissal, and that it is a potentially fair reason. The conduct of an employee is a potentially fair reason for dismissal. 72 Where an employer has shown a potentially fair reason the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case. 73 The Respondent must show that: it believed the claimant was guilty of misconduct; it had reasonable grounds upon which to sustain the belief; at the stage which it formed that belief on those grounds, it had carried out as much investigation into the matter as was reasonable in the circumstances of the case. 74 It is not necessary that the Tribunal itself would have shared the same view of those circumstances. 75 After considering the investigatory and disciplinary process, the Tribunal has to 13 consider the reasonableness of the employer's decision to dismiss and (not substituting our own decision as to what was the right course to adopt for that of the employer) must decide whether the Claimant's dismissal "fell within a band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair". The burden is neutral at this stage: the Tribunal has to make its decision based upon the evidence of the claimant and respondent with neither having the burden of proving reasonableness. 76 The claimant complains about disability discrimination. 77 It is accepted by the respondent that the claimant had a disability as defined in section 6 of the Equality Act by reason of his severe memory loss from July 2021; from anxiety since June 2021; and from respiratory problems between May 2020 and November 2021. 78 The respondent accepts having knowledge of the severe memory loss from April 2022; anxiety from October 2021 and depression from September 2022; and respiratory problems from May 2020. 79 We have regard to the provisions contained in Section 13 Equality Act 2010 (EqA) which provides that an employer must not discriminate against an employee by dismissing him or subjecting him to any other detriment. An employer discriminates against an employee if because of his disability he treats the employee less favourably than he treats or would treat others. Where the employee seeks to compare his treatment with that of another employee there must be no material difference between the circumstances relating to each case. 80 If there are facts from which the employment tribunal could decide, in the absence of any other explanation that the employer contravened the provision concerned the employment tribunal must hold that the contravention occurred. However, this does not apply if the employer shows that it did not contravene the provision. 81 Section 15 EqA provides that a person (A) discriminates against a disabled person (B) if A treats B unfavourably because of something arising in consequence of B's disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. This does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability 82 Sections 20 and 21 EqA are concerned with the duty to make reasonable adjustments. The duty to make adjustments comprises three requirements. The first requirement is relevant to this case and is a requirement, where a provision, criterion or practice of A’s (in this case an employer) puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage. 83 The second and third requirements are not relevant to this case. 84 A failure to comply with the first requirement is a failure to comply with the duty to make reasonable adjustments. An employer discriminates against an employee if the employer fails to comply with the duty in relation tot hat 14 employee. 85 The first question is what was the reason for the claimant’s dismissal? The conclusion of the Tribunal is that the claimant was dismissed because Joe Blakiston concluded that he was guilty of using a stolen credit card at work. On appeal, Lisa Turley was satisfied that the claimant had done so also. This dismissal was not because of his trade union activities. The claimant’s dismissal was for a reason related to conduct. 86 Did the respondent reasonably believe in the circumstances that the claimant had been guilty of misconduct? The answer to that is, in our view, yes. The respondent had CCTV footage of the claimant using the stolen credit card. Joe Blakiston recognised the claimant from the CCTV footage. The bank records show that the fraudulent transaction occurred at the time and location where the claimant was caught on CCTV. 87 At the time it formed that view had the respondent carried out as much investigation as was reasonable? Again, the Tribunal considers that the answer to that is yes. There had been a criminal investigation by the Investigation Branch which collected evidence; There was a decision not to proceed with a criminal process; The matter was passed to the claimant’s reporting line to be dealt with under the disciplinary procedure; There were numerous attempts to get the claimant to attend a fact finding interview; The claimant was invited to a formal conduct hearing; The claimant did not attend the hearing; and he did not attend any of the fact finding meetings. 88 The respondent offered the claimant the option of engaging in the process by various ways having regard to his sickness absence. The claimant, while agreeing to option 4, never in fact engaged. 89 The evidence showed that the individual on the CCTV footage was carrying out a criminal act. The dismissing officer and the appeal officer both concluded that this was the claimant. This was, in all the circumstances, a reasonable investigation. 90 There is a criticism made of the respondent not providing the claimant with the statements of Mick Sel and Dave Solman which appeared to have been available from about January 2020 and not providing those to the claimant at the formal conduct stage. The reason for that is that they were not provided to Joe Blakiston. It was only after Lisa Turley made further enquiries of the Investigation Branch relating to failure to produce an executive summary, one of the issues raised by the claimant, that those statements came to the attention of the disciplining mangers. As soon as they became available they were made available to the claimant. It is not credible to say that the late production of those statements caused the claimant with any kind of detriment. The claimant never engaged in the process. Had the statements been provided earlier it would have made no difference to what he could or could not say about the statements. The statements were not used against the claimant in the disciplinary process. Had they been used in the disciplinary process the overall effect of the statements would have been to bolster the respondent’s case rather than to support the claimant’s position. 91 The dismissal was, in our view, in the range of responses of a reasonable 15 employer. The claimant was dismissed for an act of dishonesty that was gross misconduct. The claimant’s role as an OPG which was one that required him to be someone who the respondent could trust and to take responsibility for delivering mail. 92 The claimant also claims wrongful dismissal. The claimant would have been entitled to a notice period of 12 weeks. The Tribunal has to consider whether the respondent has shown on a balance of probabilities that the claimant was in repudiatory breach of his contract of employment by using the credit card so as to justify his dismissal. The claimant denies that it was him on the CCTV footage. 93 Joe Blakiston, who has known the claimant for several years, says it was him. The appeal manager, Lisa Turley, during the Tribunal’s hearing said it was him. The claimant’s representative and the claimant’s friend, Umair Khan, both of whom were available to give evidence said it was not him on the CCTV footage. The Tribunal viewed the CCTV footage, and we are satisfied that it is more likely than not that it was the claimant. We consider that the quality of the CCTV footage is such that a person who knows the claimant would be able to know whether or not it is him they were looking at as opposed to somebody else. So, on balance, the Tribunal are satisfied that the respondent has shown that the claimant was in repudiatory breach of contract and the claimant was dismissed for gross misconduct and e therefore not entitled to payment for a notice period. 94 The claimant also claims that he was discriminated against on the grounds of his disability. He states that there was direct disability discrimination, and he seeks to rely on a comparison with Mr Madkor and Mr Robson. The evidence that we have heard about the case of Mr Madkor and Mr Robson is such that the circumstances of Mr Madkor’s case are materially different than those of the claimant and are not appropriate for making any comparison. 95 Mr Madkor’s case was one where it was not considered that there was any evidence of wrongdoing. 96 There was no evidence given by any witness who had any knowledge about the circumstances of the case of Mr Robson. In any event, the evidence that we heard from the claimant’s side was not such as to indicate there was a similarity between the case of Mr Robson and the claimant’s. It has not been shown that there was no material difference between the two cases and the claimant’s. Both Mr Madkor and Mr Robson are not appropriate comparators. 97 The conclusion of the Tribunal is that the claimant was dismissed because the managers believed that he was guilty of gross misconduct. There was, in our view, no question of his disability forming any part of the reason for his dismissal. The claim for direct discrimination therefore must fail. 98 As to the claim about discrimination arising from disability, the claimant states that he was dismissed and that was unfavourable treatment. He then goes on to say that he was dismissed because of something arising from disability, namely his sickness absence, and we note that the claimant was absent from work from 26 May 2020 until his dismissal and that he was signed off as unfit to work with respiratory illness. The respondent conceded that the claimant was disabled. The claimant remained absent and, over the entire period, by reason of one reason or another remained a disabled person. However, the claimant’s 16 dismissal was not because of the sickness absence. The claimant’s dismissal was because he was considered to have been guilty of conduct that was gross misconduct: that was not arising from his disability. 99 The respondent has not considered it necessary to address the points of whether or not dismissal of the claimant was a proportionate means of achieving a legitimate aim but the witnesses for the respondent have stated that the claimant could not continue to be employed as an OPG if they had lost trust in him to be able to carry out his duties honestly. 100 The claimant complains that there was a failure to make reasonable adjustments in his case. The claimant relies on various disabilities. At one point or another the respondent concedes knowledge of the disabilities. The claimant says that we should conclude that there was the relevant knowledge throughout the whole period of time. However, that was irrational in the circumstances where the disability, even on the claimant’s own evidence, did not arise at the beginning of the relevant time and remain constant. However, that makes little difference to the outcome of this case. 101 The claimant relies on the PCP of subjecting him to the disciplinary procedure and it is accepted that the claimant was subjected to the respondent’s disciplinary procedure. The claimant says that it put him at a substantial disadvantage compared to someone without his disability in that he was on sick leave while the disciplinary procedure was going on and was unable to participate. The claimant asserts that the failure to make adjustments put him at a substantial disadvantage compared to a non-disabled person. He does not however explain how he is put at a disadvantage in comparison to a non-disabled person who is in exactly the same circumstances but for the disability. That individual would also be an individual who was absent on sick leave over a period of time. 102 The claimant states that the respondent must have known of the particular disadvantage that the claimant was suffering. During the course of the disciplinary process the claimant did not express that he had any particular disadvantages his insistence throughout was that he would not participate because of his illness. We note that the respondent made a number of offers to make adjustments to enable the claimant to be able to participate in the process. 103 The claimant says that steps that the respondent ought to have taken were to make a referral to Occupational Health and to delay matters so that he could attend the face to face hearing. The respondent did make numerous referrals to Occupational Health. We are not satisfied that these would have been reasonable adjustment in any event as none of them would have been matters that would have enabled him to attend work. But in any event, this was something that the respondent actually did. 104 The claimant also says that there should have been a delay in holding any face to face meetings. The respondent conceded that the claimant did not have to attend the face to face meetings and could attend in an alternative way. And at the formal hearing with Joe Blakiston the claimant was informed that he could attend in writing and was provided with a list of questions that he could answer. The respondent did make an adjustment to the process. In any event, further delaying matters for the claimant to attend the hearing face to face would not have been a reasonable adjustment in this case. The hearing with Joe Blakiston 17 took place in March 2022. The claimant remained off sick beyond the date of his appeal and was signed off sick until 23 March 2023. Making that adjustment would not have enabled the claimant to be able to attend an appeal within any reasonable period of time. It would not, in the circumstances where this matter had been ongoing since January 2021, have been reasonable for there to be an open ended delay of the proceedings to see what happened to the claimant in respect of his health. We note that during the course of these proceedings the claimant has stated that he is now back at work, but he also contends in his witness statement that he continues to suffer significant ill health as a result of matters that have happened to him since May of 2020. 105 The claimant’s claim is entirely without merit. The claims for unfair dismissal are not well founded and are dismissed. The complaints of discrimination on the grounds of disability are not well founded and are also dismissed. Approved by: