Glassford v Royal Mail Group Ltd

In a conduct dismissal, the employer’s duty to investigate may continue through an internal appeal. A late disclosure may require further inquiry where a reasonable employer would need it before deciding whether dismissal remains fair.

However, the question remains whether the employer’s response falls outside the band of reasonable responses. Where an appeal officer has directly considered the late material, the employee has had a full opportunity to make representations, and there are rational grounds for rejecting mitigation and a lesser sanction, no further investigation is necessarily required under Employment Rights Act 1996, section 98.

The claimant, a long-serving delivery postman and driver, was dismissed with notice following an unauthorised absence while a suspended dismissal remained live. The earlier disciplinary history involved alcohol-related attendance at work while unfit to drive.

At the internal appeal against dismissal, the claimant first admitted having an alcohol problem. The appeal officer upheld dismissal after considering the admission, the claimant’s previous denials, and his failure to accept assistance offered by his GP. The Employment Tribunal dismissed claims of automatic unfair dismissal and unfair dismissal.

On appeal, the sole issue was whether the Tribunal erred by failing to find that a reasonable employer should have paused the internal appeal for further investigation or rehabilitation assessment after the late admission.

1. Appeal dismissed. The Employment Tribunal was entitled to conclude that the dismissal was fair under Employment Rights Act 1996, section 98. Its judgment stood.

2. The Burchell investigation obligation is capable of continuing to the internal appeal stage. Material information disclosed late in the process may require investigation before an employer finally decides whether dismissal or its sanction is fair. The need for inquiry depends on the circumstances.

3. Here, the appeal officer had not dismissed the claimant’s late admission summarily. He considered the claimed alcohol dependence, the claimant’s history of denying any problem, his disciplinary record, and his failure even by the appeal date to accept help offered by his GP. He also considered whether a sanction short of dismissal would be effective. He was entitled to regard the claimant’s proposed action as too little, too late.

4. The Tribunal’s findings, including its detailed findings about the full rehearing on appeal, demonstrated that it had considered that material when assessing overall reasonableness. The claimant had a full opportunity to make representations on sanction. The Tribunal did not substitute its own view for that of the employer.

5. W Wedell & Co Ltd v Tepper did not assist. That case concerned dismissal for suspected dishonesty without a fair opportunity for the employee to respond. In contrast, the employer here had considered the relevant mitigation and its process fell within the band of reasonable responses.

• Employment Appeal Tribunal: appeal dismissed; the Tribunal’s dismissal of the unfair-dismissal claims was upheld.

• Employment Tribunal: claims of automatic unfair dismissal and unfair dismissal dismissed on 8 May 2017, with written reasons provided on 11 July 2017.