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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Phillips v Royal Mail Group Plc [2004] UKEAT 0595_04_1211 (12 November 2004) URL: http://www.bailii.org/uk/cases/UKEAT/2004/0595_04_1211.html Cite as: [2004] UKEAT 0595_04_1211, [2004] UKEAT 595_4_1211 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE RICHARDSON
MR B R GIBBS
MR M WORTHINGTON
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR DAN STACEY (Of Counsel) Instructed by: FRU Hailsham Chambers 4 Paper Buildings Temple London EC4Y 7EX |
For the Respondent | MISS R THOMAS (Of Counsel) Instructed by: Messrs Eversheds Solicitors Kett House 1 Station Road Cambridge CB1 2JY |
Reasons not sufficient on the question whether at the appeal stage a reasonable employer could reasonably find that the Appellant had committed the acts of misconduct alleged. Matter remitted to same Tribunal.
HIS HONOUR JUDGE RICHARDSON
The Background
"I believe that Mr Phillips did deliberately damage employees' cars which were parked near to him by opening doors of his royal mail vehicle with considerable and deliberate force onto those cars. He may also have deliberately scratched cars using a sharp object.
I believe that in doing so he damaged over time both doors of the royal mail vehicle.
Further, I believe that he did deliberately scratch Mr Cunnew's car and probably also scratched other vehicles in the Coopersale area. In doing so brought Royal Mail into disrepute in the local community.
Mr Phillips, at his formal interview alleged that he had been set up in some way, but at appeal he said that he felt the employees had nothing against him, also that he was unable to point to any members of the public who had any grudge against him. I believe Mr Phillips is alone responsible for what happened.
Damage to the official vehicle and to employees' cars were not isolated incidents. The acts which brought this about were deliberate and over a period of time and are sufficient in my view to be classed as gross misconduct for which summary dismissal would normally be appropriate. His bringing the business into disrepute through his activities, at least Mr Cunnew's car reinforced this conclusion.
Mr Phillips offered no extenuating or mitigating circumstances of any substance and I have considered his length of service. Nonetheless I feel that in view of the nature and extent of his offences, that summary dismissal is appropriate."
The Tribunal's Decision
"67. The Tribunal find that the appeal hearing was a full re-hearing and as such was capable of remedying any failings of the disciplinary hearing.
68. The Tribunal in examining the appeal hearing, is satisfied that Mr Lucking offered the Applicant every opportunity to present his case having been fully appraised of the allegations against him and furnished with all documentation.
69. The Tribunal is further satisfied that the conduct of Mr Lucking in carrying out investigations following receipt of the Applicant's explanation was reasonable and cannot be reproached by this Tribunal and indeed the Applicant has not sought to challenge the Respondent in this respect.
70. Having considered all the evidence in this case, it is clear that the issues to be decided upon at the appeal hearing turned on whether the circumstantial evidence pointed sufficiently to the Applicant, and whom the Respondents ultimately believed, having heard the evidence. In this instance, this Tribunal cannot say that a reasonable employer seized of t-he facts in this case, could not reasonably find, as the Respondents have found, at the appeal hearing, that the Applicant had committed the acts alleged.
71. Turning to the question whether dismissal on the findings of the Respondent was reasonable, this Tribunal is satisfied that by the Respondent's procedures, the alleged acts of misconduct were sufficient to amount to an act of gross misconduct and for which dismissal without notice as a sanction was available.
72. With regards the sanction of dismissal, the Tribunal notes that whilst it appears harsh, taking into account the Applicant's previous record of conduct and length of service, considering the role of the Tribunal in this respect, the Tribunal find that the Respondents cannot be said to have been unreasonable in terminating the Applicant's employment in the circumstances of this case, that sanction being within the reasonable responses available to a reasonable employer."
The Appeal
"It is his recollection that the submissions of the Applicant at Paragraph 9 of his closing submissions presented argument as to issues that had not been raised in the Tribunal in examination of Mr Lucking or any other witness by the Applicant's representative."
He then gave an example - paragraph 9.6.2 of the closing submissions.
"8 There is no question at all, subject to any application that may hereafter be made, pursuant to paragraph 7 of the Practice Direction, for some part of the Chairman's Notes in the absence of agreement, for the Chairman to be any further troubled by this, and certainly there is no question of any referral back to the Chairman at this stage, for questions to be answered, the Chairman having manfully done what he has done. It is clear that his latest response was indeed that which it says, namely provided urgently, and without refreshing his recollection from his Notes of Evidence."
Sufficiency of Reasons
Failure to address Mr Phillips' case.
Leave to amend
The question of remission