Jacovelli v Royal Mail Group Ltd

In a misconduct dismissal case, fairness requires a reasonable investigation, not an investigation meeting a standard of perfection or necessarily the standard expected in a criminal case. Delay may render a disciplinary process unfair where, in the particular circumstances, it causes material prejudice, such as lost evidence or fading memories. The question is fact-sensitive.

An Employment Appeal Tribunal will not ordinarily entertain an argument which was not advanced below. It will interfere with factual conclusions only where there is a cogent case of perversity or material misapprehension. A tribunal’s conclusion that an investigation was reasonable will stand unless it was wholly impermissible.

The appellant, an employee and trade union representative, was dismissed for misconduct after his employer concluded that an email relied upon in support of his account of authorised leave had been fabricated. The Employment Tribunal rejected his complaint of unfair dismissal. It found that the employer had conducted a thorough and reasonable investigation and that the disciplinary process was fair.

On appeal, he argued that delay had prevented definitive IT records from being obtained and that the employer should have followed the special procedure for union representatives. He further argued that the Employment Tribunal’s conclusion was perverse. The central issues were whether these arguments had been advanced below and whether the Tribunal had erred in law.

1. Appeal dismissed. The Employment Tribunal had applied the principles in British Home Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1982] IRLR 439. The employer had a genuine belief in the employee’s misconduct, held on reasonable grounds after a reasonable investigation.
2. The Employment Appeal Tribunal could not ordinarily entertain arguments not advanced before the Employment Tribunal. Under Kumchyk v Derby City Council [1978] ICR 1116, an exception required satisfaction that all material facts were available and that allowing the new argument would cause no prejudice. The wider arguments concerning delay and the practical consequences of applying appendix 4 had not been presented below.
3. The employer bore the general responsibility for applying the special procedure for trade union representatives. However, the issue before the Employment Tribunal was whether the disciplinary process was fair overall. The appellant had not established below that application of appendix 4 would probably have secured the missing IT evidence.
4. Delay must be assessed case by case. It may create unfairness where it causes prejudice to the investigation, including loss of evidence or fading memories. The discussion in RSPCA v Cruden [1986] ICR 205 and A v B [2003] IRLR 405 did not assist the appellant because the Employment Tribunal had not regarded the delay as exceptional or unfair.
5. A reasonable investigation need not be perfect. The Employment Tribunal had considered the absence of definitive IT evidence and the competing explanations, and was entitled to conclude that the investigation was thorough and reasonable. Its conclusion was not wholly impermissible or perverse.

• Employment Appeal Tribunal: Appeal against the Employment Tribunal’s dismissal of the unfair-dismissal claim dismissed.
• Employment Tribunal: Found that the dismissal followed a thorough and reasonable investigation and that the disciplinary process was fair.