THE INDUSTRIAL TRIBUNALS

CASE REF:	1555/05

CLAIMANT:			Edwin McClements

RESPONDENT:		Royal Mail

DECISION 

The unanimous decision of the tribunal is that the claimant was fairly dismissed following proper disciplinary procedures carried out by the respondent.

Constitution of Tribunal:

Chairman:		Miss E McCaffrey

Members:		Mr A Crawford
Mr P Sidebottom

Appearances:

The claimant appeared and represented himself.

The respondent was represented by Mr David Dunlop, Barrister-at-Law, instructed by Napier & Sons, Solicitors.

THE ISSUE 

The issue for the tribunal to decide was whether or not the claimant had been unfairly dismissed and specifically, whether the decision of the respondent to dismiss the claimant fell within the reasonable band of responses which an employer may use as a sanction in response to misconduct under the terms of the Employment Rights (Northern Ireland) Order 1996.

FACTS

1.	The facts were not disputed between the parties and can be briefly stated as follows.  The claimant was employed by the respondent as a Delivery Postman at the Coleraine Delivery Office.  He commenced employment early in June 2004 and completed an application form on 14 June 2004, shortly after he started his employment.  In that application form there is a question which read as follows:-

2.	“6.	Have you at any time been convicted or found guilty of an offence by any Court or Court Martial, or is any case pending?”

3.	To this the claimant answered “No”.

4.	In fact at the date when the claimant completed the application form, he was aware that a prosecution was likely to be pending as his house had been raided by the PSNI in March 2005 and he had been found to be in possession of Class B and Class C drugs, contrary to the Misuse of Drugs Act 1971.  In addition, he was found to be cultivating cannabis, which is an offence under the same Act, and was told by the police in March 2004 that the matter would be reported with a view to prosecution.  

5.	The claimant subsequently received  summonses under which he was prosecuted for possession of Class B and Class C drugs and with cultivating cannabis.  In the meantime the claimant’s temporary employment with the respondent was extended and he was given a permanent contract in August 2004.  The claimant confirmed that he had signed that contract although he said that he had not actually read the terms of it.  The contract states at Paragraph 24:-

6.	“Criminal Convictions

“You are required to advise your manager immediately where you have been charged or summonsed to appear before a Court in criminal proceedings (except for a road traffic offence in a private vehicle) or where you have been convicted of any criminal offence(s).  If you are convicted of a road traffic offence in a private vehicle off duty and the penalty is imprisonment (either immediate or suspended) or a driving disqualification, that fact must be reported to your manager as soon as possible.”

7.	The claimant did not report the receipt of the summons to his manager.  He subsequently appeared at Court in January 2005 when he pleaded guilty to the charges with which he was charged.  In respect of the charge of cultivation of cannabis he was given a custodial sentence of three months which was suspended for two years and fined the sum of £300.00.  In respect of the three charges of possession of Cass B and Class C drugs he was fined the sum of £150.00 on each charge.  

8.	The respondent subsequently became aware of these convictions due to a PSNI service to the respondent where information regarding convictions of Royal Mail staff is passed to the respondent under Home Office Circular 5/86.  When this matter came to the respondent’s attention the claimant was invited to attend a fact finding interview on 30 June 2005.  Following that interview, on 1 July 2005 the claimant was advised that he would be charged with two disciplinary offences by the respondent :  first of all, failure to disclose the pending summons and secondly, failure to notify his manager of the convictions in January 2005.  

9.	A disciplinary interview was held on 15 August 2005 at which the claimant was accompanied by a trade union representative. At that meeting the claimant advised that he had sought advice from his solicitor as to whether he should declare the likely prosecution and was advised to ‘do nothing until a summons arrived’.  The result of that interview was a decision by Mr Ferry, one of the respondent’s managers, that the claimant should  be summarily dismissed  for gross misconduct with effect from 25 August 2005.  The claimant subsequently appealed and that appeal was dealt with by Mr O’Hare, another of the respondent’s managers.  The appeal was heard on 5 October 2005 and the result of the appeal was notified to the claimant subsequently in December 2005.  Mr O’Hare upheld the claimant’s appeal in relation to the charge of failing to disclose on his application form that he had a criminal record.  However he did not uphold his appeal in relation to the second charge, that of failing to disclose a criminal conviction. 

10.	Mr O’Hare was satisfied that the claimant was fully aware of his responsibilities to report convictions and in his view, made a conscious decision not to do so.  In his conclusions in relation to the appeal Mr O’Hare states, “although Mr McClements was not charged with being convicted of a crime that would make him unsuitable for continued employment in Royal Mail, I have to consider the consequences had Mr McClements remained in the business.  Given the gravity of the crime, the opportunity presented to Mr McClements by access to the business network and the likelihood of adverse publicity should he re-offend I would conclude that, within the band of reasonable responses, consideration of continued employment would be expected and continued employment doubtful to say the least”.

11.	The claimant was unhappy with the decision to dismiss him and lodged a claim of unfair dismissal.   

THE LAW

12.	There was no dispute in this case that the respondent’s procedures regarding disciplinary action had been correctly carried out, the claimant had an opportunity to make his views known and had an opportunity to be accompanied at the fact-finding interview, the disciplinary interview and on appeal.  He had an opportunity to put forward his case and be heard.  Indeed his appeal was upheld on one ground, but not upheld on the other and so the decision to dismiss him was upheld. The decision to dismiss was therefore procedurally fair.

13.	The claimant’s main grievance in these proceedings was that he believed that the decision to dismiss him was disproportionate to the gravity of the offence, he did not dispute the events which had happened or that the disciplinary charges against him were well-founded.  So the tribunal is in a position where, in order to find in favour of the claimant, we would have to be satisfied that the respondent acted outside the band of reasonable responses in dismissing the claimant for gross misconduct in the circumstances of this case.

14.	The law in relation to this matter is to be found in Articles 126 and 130 of the Employment Rights (Northern Ireland) Order 1996 which provide as follows:-

“126(1)	An employee has the right not to be unfairly dismissed by his employer.

 (2)	Paragraph (1) has effect subject to the following provisions of this Part (in particular Articles 140 to 144).

“130(1)	In determining for the purposes of this Part whether the dismissal is fair or unfair, it is for the employer to show:- 

(a)	the reason (or if more than one, the principal reason) for the dismissal, and

(b)	that it is either a reason falling within Paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

     “(2)		A reason falls within this paragraph if it –

(a)	related to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, 

(b)	relates to the conduct of the employee, 

(c)	is that the employee was redundant, or 

(d)	is that the employee could not continue to work in the position which he held without contravention (either on his part or that of his employer) of a duty or restriction imposed by or under a statutory provision.
……. 

“(4)	Where the employer has fulfilled the requirements of Paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –

(a)	depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and 

(b)	shall be determined in accordance with equity and the substantial merits of the case.” 

15.	The tribunal was also referred to the learned authors of Harvey on Industrial Relations Law and Practice at Volume 1, Paragraph 1534.  The test for the tribunal to apply is whether the dismissing authority at the date of the dismissal and at the appeal acted within a “reasonable band of responses” to the disciplinary offence committed by the employee in deciding to dismiss him. It is well established in  case law that it is not the role of the tribunal to substitute its own decision for that of the disciplining and dismissing authority.  

DECISION OF THE TRIBUNAL 

16.	The respondent argued that all disciplinary procedures and steps had been properly followed by the respondent and that, given the gravity of the disciplinary offence committed by the claimant and the fact that he had been convicted of an offence which had led to the imposition of a suspended prison sentence,  they had acted reasonably in deciding to dismiss him for gross misconduct in failing to disclose the conviction.

17.	The claimant indicated that he was not aware of his obligation to disclose either the pending court proceedings or the conviction to his employer, although this seems doubtful given that he sought the advice of his solicitor before he completed his application form to the respondent.  He pointed out that he had been “caught” for these offences at a time prior to his employment with the respondent.  He had been employed by the respondent for a year and nine months when he was dismissed and had a good disciplinary record.  He also made the point that he had been convicted of these offences and had no previous convictions of any kind.  He therefore took the view that he was unlikely to re-offend and that there was no further risk to the respondent.  

18.	The tribunal has considered all the arguments and the views put forward by both parties. While it is unfortunate for the claimant that he has lost his job over  this matter, we cannot substitute our own decision for that of the dismissing authority.  The claimant agreed that his behaviour had been correctly classified as gross misconduct.  In the absence of any evidence of a perverse decision by the respondent, the finding of the tribunal is that the decision of the respondent  to dismiss the claimant fell within the reasonable band of responses and  the claimant was fairly dismissed for gross misconduct .  The claimant’s case is therefore dismissed.

Chairman:

Date and place of hearing:	19 June 2006, Limavady

Date decision recorded in register and issued to parties: