Okhiria v Royal Mail

Under section 98(4) of the Employment Rights Act 1996, the adequacy of a misconduct investigation and disciplinary process is assessed within the range of reasonable responses. An appellate challenge based on perversity succeeds only where no reasonable Employment Tribunal could have reached the conclusion challenged.

An employer cannot fairly be criticised for failing to investigate a specific exculpatory matter which the employee did not raise during the investigation, appeal or claim. A procedural shortcoming at the disciplinary stage may be cured on appeal where the appeal officer considers all material evidence. Whether disciplinary action should await criminal proceedings is context-specific and must ordinarily be raised before the Employment Tribunal.

The claimant, a Royal Mail delivery worker, was dismissed for gross misconduct after a joint investigation with the police and the United Kingdom Border Agency into suspected interception of mobile telephones. A substantial quantity of telephones was found at his home. His internal appeal was rejected following further enquiries.

Employment Judge Freer, sitting in the London (South) Employment Tribunal, dismissed his unfair dismissal claim in written reasons sent on 13 May 2013. The claimant appealed, alleging that the findings that the investigation and the disciplinary and appeal procedures fell within the range of reasonable responses were perverse. He also advanced, without amending his grounds, a submission that the employer should have awaited the criminal proceedings.

1. Appeal dismissed. Neither amended ground established that the Employment Tribunal's findings were perverse. The Tribunal had applied section 98(4) of the Employment Rights Act 1996 and was entitled to find that both the investigation and the overall process fell within the range of reasonable responses.

2. The proposed contention that the employer should have stayed its investigation and disciplinary process pending the criminal case was not a permitted ground of appeal. It had not been advanced before the Employment Tribunal. In any event, the authorities showed that the question was context-dependent. The Tribunal could not be expected to investigate the relevant context without the point being put to it.

3. The claimant's pleaded criticism of the investigation concerned possible access by others to his PDA log-in details. He had not raised that alleged exculpatory matter with the investigating officer, the appeal officer or in his ET1. The employer could not therefore be criticised for failing to investigate it. The additional criticisms advanced in argument did not compel a conclusion that the investigation was unreasonable.

4. The absence of the full police interview transcript at the disciplinary hearing did not make the Tribunal's fairness finding perverse. The decision-maker had an executive summary and sufficient detail, and the claimant was given enough material to make a coherent response. Further, the Tribunal was entitled to find that any defect at that stage had been corrected when the appeal officer considered all material evidence.

5. The appeal investigation documents were misaddressed and did not reach the claimant. The Tribunal was entitled to find that this was not deliberate, that it was not unusual for employees not to respond, and that the appeal officer would have permitted representations had the claimant raised the non-receipt. That lapse did not vitiate the process which the Tribunal had otherwise found fair.

• Employment Appeal Tribunal: appeal dismissed: [2014] UKEAT 0054_14_0807.
• Employment Tribunal (London (South)): Employment Judge Freer dismissed the unfair dismissal claim in written reasons sent on 13 May 2013.