Royal Mail Group Ltd v Lall

In a misconduct dismissal appeal, an appellate tribunal must not substitute its own view for that of either the employer or the Employment Tribunal. Where the tribunal has correctly directed itself, made sustainable findings of fact, and assessed the dismissal by the standards of the reasonable employer, its conclusion will ordinarily stand.

A dismissal may be unfair where the decision-maker permits an unsupported suspicion about the employee’s integrity to affect the sanction, without considering relevant mitigating factors. An appeal which does not challenge the tribunal’s material findings may be misconceived and attract costs.

The claimant had worked for Royal Mail and the Post Office for about 30 years. He was dismissed from his employed counter-clerk post after his wife’s fraud at a post office which he had operated as sub-postmaster. The Employment Tribunal accepted that he had not known of the fraud.

The Tribunal found that the appeal manager had allowed an unsupported suspicion of the claimant’s dishonesty to influence the decision to uphold summary dismissal. It held the dismissal unfair and made no deduction for contributory conduct.

Royal Mail appealed, contending that the Tribunal had substituted its own view for that of the employer. The central issue was whether the Tribunal had erred in applying the reasonableness test under section 98(4) of the Employment Rights Act 1996.

1. Appeal dismissed. The Employment Tribunal had correctly directed itself on the law governing misconduct dismissals, including the Burchell approach and the prohibition on substituting its own view for that of the employer. The EAT rejected the contention that isolated wording in the Tribunal’s reasons showed an impermissible substitution exercise. Read fairly and as a whole, the reasons applied the reasonable-employer test.

2. The critical unchallenged finding was that the appeal manager had no evidential basis for his conclusions that the claimant was implicated in his wife’s fraud or lacked integrity. Those conclusions had affected his assessment of the appropriate sanction. The manager had also failed to consider relevant matters, including the claimant’s long unblemished record, the context of the password-sharing, his lack of knowledge of the fraud, and the fact that his sub-postmastership had already been terminated.

3. Integrity was a material issue. By reference to Strouthos, it was unfair to treat the claimant as dishonest, or disbelieve his account as bearing on his integrity, without putting that allegation squarely to him. Once the unsupported integrity concern was removed, the Tribunal was entitled to conclude that summary dismissal fell outside the band of reasonable responses, notwithstanding the employer’s legitimate concern with security and passwords.

4. The EAT stressed that its appellate role was limited. A properly directed Tribunal may reach a conclusion that a reasonable employer would not have dismissed on the facts found, and that evaluative conclusion was not perverse or legally erroneous.

5. Under rule 34A, costs of £4,000 plus VAT were awarded to the claimant. The appeal was misconceived because it did not challenge the decisive finding that the appeal manager had failed to consider relevant matters. Its passage through the sift did not preclude a costs order.

• Employment Appeal Tribunal: Royal Mail’s appeal was dismissed. The EAT upheld the finding that the claimant had been unfairly dismissed and awarded appeal costs to the claimant.
• Employment Tribunal sitting at Havant: Employment Judge J Simpson’s Tribunal, in reasons sent on 12 December 2011, upheld the claimant’s unfair-dismissal claim and made no deduction for contributory conduct.