Nugent v Royal Mail Group Ltd [2015] NIIT 02762

THE INDUSTRIAL TRIBUNALS

CASE REF: 2762/14

CLAIMANT: Adrian Gerard Nugent

RESPONDENT: Royal Mail Group Limited

DECISION

The unanimous decision of the tribunal is that the claimant's claim of unfair dismissal is dismissed.

Constitution of Tribunal:

Employment Judge: Employment Judge D Buchanan

Members: Professor D Boyd

Mr B McAnoy

Appearances:

The claimant was represented by Mr P Ferrity, Barrister-at-Law, instructed by Gus Campbell, Solicitors.

The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Carson McDowell LLP, Solicitors.

1(i) The claimant, Mr Adrian Nugent, was employed as a postman by the respondent, Royal Mail Group Limited, from 14 October 1998 until 24 September 2014. On that latter date he was dismissed for alleged gross misconduct. This followed his involvement in a road traffic accident, which took place on 5 July 2014, when he was driving one of the respondent's delivery vans in a rural area of Armagh.

(ii) The reasons for the claimant's dismissal were that the respondent's managers believed that he had not been wearing his seat belt at the time of the accident, and that his driving was at fault on the occasion in question.

(iii) The claimant had previously been dismissed by the respondent on 10 June 2011, but was reinstated following an Order of an industrial tribunal in successful unfair dismissal proceedings which he had subsequently brought. That dismissal also followed a road traffic accident in which he had been involved. On that occasion the accident had been more serious, and the claimant had also not been wearing a seat belt.

2(i) On 10 December 2014 he presented a claim of unfair dismissal in relation to his sacking on 24 October 2014. He made various complaints of unfairness, including alleged disparity of treatment with fellow employees who had also been caught not wearing seat belts and who were not dismissed, an allegation that the investigation into his alleged misconduct had not been reasonable, an allegation that this was 'payback' time as far as the respondent's managers were concerned (they wanted rid of him because he had succeeded in his previous unfair dismissal claim), and a complaint that the sanction imposed - dismissal - was unreasonable and disproportionate in the circumstances, having regard to the claimant's length of service, his good work record, and the treatment afforded to other drivers.

(ii) In order to determine this matter, the tribunal heard evidence from the claimant, Mr Nugent, and from the following witnesses on behalf of the respondent:-

Mr Jack Harris, Assistant Delivery Office Manager, Portadown;

Mr Eamar O'Hagan, a senior manager with responsibility for the Armagh area; and

Mr Pat Latimer, who fulfilled the role of an Appeals Casework Manager on a permanent basis. (Mr Latimer had heard, and rejected, the claimant's previous internal appeal against his dismissal in 2011.)

(iii) The tribunal finds the facts set out in the succeeding paragraphs proved to its satisfaction on the balance of probabilities.

3(i) As indicated, the claimant was involved in a road traffic accident while in the course of delivering mail on 5 July 2014. Mr Harris was notified of this accident and, accompanied by Mr Aidan McCreesh, another Royal Mail manager, he visited the scene. While there, Mr Harris carried out an investigation of what had happened based on a reconstruction and his own observations. He also took photographs.

(ii) The claimant had made a delivery to a house on the right hand side of the road. His account was that he came from its driveway back on to the road, with the intention of then making a delivery to a house on the left hand side. As he went out to turn left, indicating appropriately, the other driver overtook him on his inside, using the stone verge on the left hand side of the road and the entrance of the house on the left hand side to do so. She did not succeed in this manoeuvre, and collided with him. According to the claimant's account of the accident, he was at no stage driving on the wrong side of the road.

(iii) Mr Harris did not accept the claimant's account of what had happened and believed the third party's version of events. He concluded that the claimant was too far over on the wrong side of the road, and that the third party, who was travelling in the same direction, attempted to pass the claimant on his left hand side. The collision took place as the claimant was attempting to turn left into the driveway. Mr Harris concluded that the claimant had totally misjudged the speed at which the third party was travelling, and considered that the claimant was totally to blame for the accident.

(iv) We consider that this apportionment of complete blame to the claimant was untenable and somewhat harsh (and indeed was not shared by other Royal Mail managers involved in the disciplinary process), but at the end of the day we think little turns on this because it was not the claimant's standard of driving that was ultimately the determinative issue in his dismissal, and in the rejection of his appeal against that dismissal.

(v) The more serious matter which arose was that on carrying out an inspection of the claimant's vehicle, Mr Harris noted that the driver's seatbelt was still engaged in the receiver, ie fastened. This had the effect of disabling the alarm which would normally sound if a driver attempted to drive without a seatbelt. This aroused his suspicions, as he knew that the practice of driving without wearing a seatbelt (but at the same time engaging it in the receiver to disable the alarm) had at times been prevalent among drivers, and it also had to be asked why, if a driver who had been wearing a seatbelt got out of the vehicle, he would re-engage the seatbelt when the empty vehicle was stationary.

(vi) Mr Harris did not ask the claimant at the scene if he had been wearing a seatbelt. His reason for not doing so was that the claimant had adopted an aggressive attitude.

However, we accept Mr Harris's evidence that the claimant subsequently admitted to him back at the depot in Craigavon on the day of the accident that he had not been wearing a seatbelt. When asked whether this was something he did often, the claimant replied:-

"No, just today."

Mr McCreesh was present and heard him make that admission.

4(i) Mr Harris subsequently conducted a fact-finding interview with the claimant on 25 July 2014. At that meeting he put it to the claimant that he had admitted on the day of the accident that he had not been wearing a seatbelt. The claimant did not, on that occasion, challenge the version of events which Mr Harris put to him.

(ii) At the meeting, the claimant was also asked if he remembered a conversation he had had on the day of the accident about disabling his seatbelt. He replied:-

"Yes however my GP advised me not to be wearing a seatbelt with my back complaint and I get into the van sit up straight put my arm behind my back under the seatbelt and clip into the socket again."

According to the claimant his GP advised him to engage the seatbelt in this way when he was in pain.

It is accepted by the respondent's managers that it is possible to engage a seatbelt in this way, albeit that the method is complicated, awkward, and time-consuming.

(iii) The claimant never indicated to his managers that he had a problem with wearing a seatbelt, and he never told them about the advice he had been given by his GP. At the hearing he agreed it would have been wise to have done so. He never produced any medical evidence or letter from his doctor in advance of either the accident or the fact-finding meeting, and despite telling Mr Harris at the meeting that he would get such a letter, he never provided one at any subsequent stage.

Leaving aside his doctor's advice, the claimant also never attempted to obtain at any stage a formal medical certificate exempting him from the Regulations made under the Road Traffic Order which impose the general legal requirement on drivers and passengers to wear seatbelts.

5(i) Following this meeting, Mr Harris wrote to the claimant on 14 August 2014 that the case had been referred upwards for consideration of any further action as the potential penalty that could be imposed was outside the limits of his authority. (It was the seatbelt issue which required upward referral - Mr Harris could have dealt with any issues relating to the claimant's standard of driving.)

(ii) It is also convenient to state at this stage that we accept the evidence of Mr Harris that when he dealt with the claimant he had no knowledge of the claimant's previous unfair dismissal claim, that it related in part to his failure to wear a seatbelt on that occasion also, or that Mr McCreesh (who accompanied him to the scene of the accident) had been the manager involved in investigating it and sending it up the line.

6(i) As a result of the fact-finding meeting with Mr Harris, the claimant was charged with gross misconduct by failing to drive at the standard expected of a Royal Mail driver and thereby causing an accident, and failure to wear a seatbelt in that he deliberately circumvented equipment fitted for safety purposes by engaging the seatbelt in the receiver to disable the alarm. He was invited to a disciplinary meeting to be held before Mr O'Hagan on 21 August 2014. That meeting duly took place. It was suspended so that Mr O'Hagan could carry out some further enquiries, and was resumed with the hearing of the evidence concluded on 11 September 2014. On both these occasions, the claimant was represented by an official of his trade union, the CWU.

(ii) The claimant was subsequently invited to a further meeting with Mr O'Hagan on 24 September 2014 when he was informed that he was being dismissed and given a letter outlining the reasons for that dismissal. Mr O'Hagan, when conducting the disciplinary interview, was aware of the previous incident leading to the claimant's dismissal and that it may have involved not wearing a seatbelt.

(iii) In his decision letter, Mr O'Hagan stated that he believed the charge of gross misconduct was proved. He mentioned, in particular, that he did not believe the claimant would have had the presence of mind to re-engage the seatbelt into the receiver following the collision, and that he found it difficult to accept his claim that he had been aware of an alternative method of putting on a seatbelt for a considerable period of time, yet he did not bring this to the attention of any manager in Royal Mail.

He also found that blame for the road traffic accident was 50/50, and that consequently the claimant was also guilty of failing to drive at the standard expected of one of Royal Mail's drivers. In this latter respect he took a more lenient view than Mr Harris, who had attributed the blame entirely to the claimant. He would not have regarded the claimant's driving on its own as meriting dismissal, and the driving aspect was not used to pull the non-wearing of the seatbelt over the line to dismissal.

(iv) Mr O'Hagan had weighed up all the conflicting evidence before he reached any conclusions. He considered the evidence from Mr Harris, supported Mr McCreesh, that the claimant had admitted not wearing his seatbelt on the day against the claimant's subsequent denials that he had made such an admission and took into account photographic evidence showing the seatbelt engaged after the accident, and the claimant's evidence that he took time to re-engage the seatbelt before getting out of the van after the accident and what seemed to him the inherent unlikelihood of that account.

He accepted that the claimant had a medical condition and had difficulty moving because of back pain, and that it was theoretically possible to engage the seatbelt in the way the claimant's doctor had recommended. As against that it was difficult for him to comprehend why the claimant had not told management about his problem or obtained supporting medical evidence, particularly as the claimant accepted that to 90% of people it would look as if he were not wearing a seatbelt. This had the potential to cause difficulties for him in a disciplinary context, particularly in view of the previous incident when he had been dismissed for a similar offence.

(v) At the hearing, the claimant alleged as part of his unfair dismissal claim, that he had been treated differently from a Mr Nelson, a Royal Mail driver in Lurgan. Mr Nelson had been disciplined for not wearing a seatbelt, but had not been immediately dismissed. Mr O'Hagan had dealt with that case also. Mr Nelson had admitted that he was not wearing a seatbelt and undertook to wear it in future. His case differed from that of the claimant who had denied not wearing a seatbelt. In this respect Mr O'Hagan had formed the view that the claimant, unlike Mr Nelson, had been dishonest in his dealings with him. Mr Nelson had a long record of service and a clear record, with no previous involvement in road traffic accidents. Notwithstanding this, Mr O'Hagan imposed a suspended dismissal, in itself regarded as a severe penalty, upon him.

(vi) We consider that on the evidence before him, it was reasonable for Mr O'Hagan to reach the conclusion he did, and that in assessing that evidence, he was entitled to form an unfavourable view of the claimant's credibility.

7(i) The claimant was informed of his right to appeal against dismissal, and he exercised that right on 24 September 2014, the date of his dismissal.

The appeal commenced on 14 October 2014. It was conducted by Mr Pat Latimer, who had worked for Royal Mail for over 35 years, and who, in the four years prior to the appeal, had been employed in the capacity of Appeals Casework Manager on a full-time basis. The claimant was again accompanied by a trade union representative.

This was not the first time the claimant's and Mr Latimer's paths had crossed. It was Mr Latimer who had heard, and rejected, in July 2011, the claimant's appeal against his dismissal following the previous road traffic accident where he had not been wearing his seatbelt. He pointed this out to the claimant and his representative. They did not raise any objection to him hearing the appeal, or raise any issue calling his fairness into question.

(ii) The claimant was provided with copies of all relevant documents in advance of the meeting and Mr Latimer asked him a series of questions to establish his understanding of his responsibilities in relation to health and safety matters, with particular reference to the charges he faced, and also to clarify the events which had taken place on the day of the accident and to give him an opportunity to explain what had happened.

Following the meeting, the claimant was given copies of the notes of interview.

Mr Latimer also subsequently addressed written queries to Mr O'Hagan, Mr Harris and Mr McCreesh about their versions of events and what they had each witnessed on the day of the accident.

In particular, he asked Mr O'Hagan about comparator cases, that is cases of employees who, like Mr Nelson, had been dismissed in circumstances which the claimant considered to be similar to his.

(iii) Having considered and weighed up the evidence before him, Mr Latimer considered that the claimant had been guilty of gross misconduct in failing to wear his seatbelt, and had been at fault in the manner of his driving. Mr Latimer, like Mr O'Hagan, felt that the claimant's conduct in not wearing his seatbelt and in deliberately circumventing that obligation was the action that merited dismissal. The manner of the claimant's driving, while blameworthy, did not merit dismissal.

(iv) In weighing up the evidence, Mr Latimer took into account the photographs of the scene, the claimant's admission to Mr Harris that he had not been wearing a seatbelt (which was supported by Mr McCreesh), his explanation as to how he engaged and disengaged the seatbelt - something which he accepted was feasible, but unlikely - the improbability that he had re-engaged the seatbelt after getting out of the car, and the fact that his claims about the medical advice he had received were, and continued to be, unsupported.

He was satisfied that the case involving Mr Nelson was not evidence that the claimant had received differential treatment. Mr Nelson had admitted the offence from the outset, whereas he considered that the claimant had been dishonest in his accounts of what happened.

Again, like Mr O'Hagan, he considered that the penalty of a suspended dismissal imposed on Mr Nelson was a severe one.

In reaching his decision, Mr Latimer also took into account the claimant's length of service, some 16 years, and the fact that the claimant came before him with what was in effect a clear record.

We believe Mr Latimer when he stated that he accepted the decision of the previous industrial tribunal when it ordered the claimant's reinstatement; and that the claimant's previous dismissal was not a factor he took into account in imposing a penalty of dismissal on this occasion, except to the extent that he considered it of relevance in the sense that the claimant's previous dismissal should have made him, of all Royal Mail drivers, aware of the importance of wearing a seatbelt.

(v) We are satisfied that driving without a seatbelt was capable of constituting gross misconduct. While not specifically categorised as such in the respondent's disciplinary code, that code was non-exhaustive and did include as gross misconduct the ' deliberate disregard of health [and] safety ... procedures or instructions'.

There was evidence before us that there was, at times, a degree of prevalence among Royal Mail drivers in failing to wear seatbelts and a Manager's Brief dated 27 April 2012 entitled ' Wearing of Seatbelts in Royal Mail vehicle' made it clear that it was compulsory to do so, that failure to wear a seatbelt was a criminal offence and that a driver who broke the law was liable to a potential penalty of dismissal under the Disciplinary Code.

As far as the claimant himself was concerned, he had undergone refresher training following his previous reinstatement which had involved, among other things, discussion and instruction on the wearing of seatbelts and the claimant accepted that it had been made clear to him that seatbelts should be worn at all times and that a failure to do so could result in dismissal.

8 In deciding whether or not a dismissal for alleged misconduct is unfair, the tribunal has to decide whether the respondent had a reasonable suspicion amounting to a belief in the guilt of the employee of the misconduct in question at the relevant time. This can be broken down into three elements. First, there must be established by the employer the fact of that belief; that the employer did believe it. Second, it must be shown that the employer had in his mind reasonable grounds on which to sustain that belief. Third, the employer at the stage at which he formed that belief on those grounds, must have carried out as much investigation into the matter as was reasonable in all the circumstances of the case.

( British Homes Stores v Burchell [1978] IRLR 379 EAT )

See also : Rogan v South Eastern Health and Social Care Trust [2009] NICA 47 and the more recent case of X v Ministry of Defence [2015] NICA 44. These decisions emphasise that a tribunal hearing a claim of unfair dismissal has to focus on the reasonableness or otherwise of the employer's decision and refrain from substituting its views for those of the employer.

In Sainsburys Supermarkets Ltd v Hitt [2003] IRLR 23 CA, it was held that the range of reasonable response test applies as much to the question of whether an investigation into suspected misconduct was reasonable in all the circumstances as it does to other procedural and substantive aspects of the decision to dismiss an employee for a conduct reason.

9(i) In the instant case we are entirely satisfied that the claimant's dismissal was both procedurally and substantively fair and that the penalty of dismissal was a reasonable one in the circumstances. Driving without a seatbelt is a criminal offence. There may have been some ambiguity in the past about Royal Mail's attitude to such conduct, but in the period since the claimant's previous dismissal, any such ambiguity had been resolved, and it was clear that the employer regarded failure to comply with the law seriously. Royal Mail's rules on the matter were well-known to its employees. As a matter of common sense, drivers who did not wear seatbelts had the capacity, leaving aside the safety implications, to cause reputational damage to the organisation.

(ii) We accept the respondent's contentions that the Nelson case can be differentiated from the claimant's because of the latter's dishonestly, and we reject any suggestion that the respondent in effect used the claimant's involvement in a fairly mundane traffic accident as a device to get rid of him because he had previously brought a claim against them which had resulted in his reinstatement.

(iii) Had we found in the claimant's favour on the issue of unfair dismissal, we would in any event have reduced any compensation awarded to him substantially on the ground that he had contributed to that dismissal.

(iv) The claim is dismissed.

Employment Judge

Date and place of hearing: 10 - 12 June 2015, at Belfast

Date decision recorded in register and issued to parties:

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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Nugent v Royal Mail Group Ltd [2015] NIIT 02762_14IT (17 December 2015) URL: http://www.bailii.org/nie/cases/NIIT/2015/02762_14IT.html Cite as: [2015] NIIT 02762_14IT, [2015] NIIT 2762_14IT

Industrial Tribunals Northern Ireland Decisions