I Mbola v Royal Mail

An employment tribunal assessing fairness must identify the employer’s actual reason for dismissal, rather than rely on a broad label such as conduct. Where dismissal rests on more than one alleged event, the tribunal must address the material allegations that formed the employer’s reasoning.

A finding that an employee admitted gross misconduct is erroneous where the employee consistently denied the element that made the conduct gross misconduct. The tribunal must then determine whether the employer reasonably found that allegation proved and whether dismissal for the actual reason or reasons was within the range of reasonable responses.

The claimant, a postman, was dismissed after two tracked items were left at the delivery office and he later falsely told his manager that they had been delivered. The respondent’s disciplinary and appeal officers found that he had intentionally delayed the mail, which its procedures treated as gross misconduct.

The Employment Tribunal dismissed his unfair-dismissal claim. It stated that he had admitted the misconduct characterised as gross misconduct. The claimant appealed, contending that he had always denied intentionally delaying the mail and that the tribunal had not identified or assessed the actual reason for dismissal.

1. Appeal allowed. The Employment Tribunal erred in law and its decision that the dismissal was fair could not stand.

2. The tribunal had to identify the employer’s actual reason for dismissal, rather than the general description of “conduct”. The disciplinary decision rested on intentional delay of mail and dishonesty towards the manager. The claimant had admitted the latter but had consistently denied the former, maintaining that he had forgotten the items because he was distressed after a call from social services.

3. The tribunal’s statement that the claimant had admitted misconduct identified in the policies as gross misconduct could only refer to intentional delay of mail. Dishonesty was not itself identified in the disciplinary code as gross misconduct. The finding of an admission was therefore plainly contrary to the evidence.

4. The tribunal could have found that the respondent reasonably rejected the claimant’s explanation and genuinely found intentional delay proved, but it did not do so. Nor did it decide that dishonesty alone amounted to gross misconduct or that dismissal for that admitted conduct was within the range of reasonable responses. Reading the reasons fairly and as a whole could not cure that failure.

5. The unfair-dismissal claim was remitted for a rehearing before a differently constituted Employment Tribunal. A different tribunal avoided any perception that the original judge would receive an impermissible second opportunity and reduced the risk of further delay.

• Employment Appeal Tribunal: Allowed the claimant’s appeal and remitted the unfair-dismissal claim for rehearing before a differently constituted Employment Tribunal.
• Employment Tribunal, London South: On 21 January 2020, dismissed the claimant’s unfair-dismissal claim.